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Copy 1 




The 

Harvard Law School 

1817-1917 



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CONTENTS 

Preface Page 2 of Cover 

CHAPTER PAGE 

I. History of the School i 

II. Instruction 64 

III. The Library 86 

IV. Portraits and Prints 122 

V. The Students 128 

VI. The Future 154 

LIST OF ILLUSTRATIONS 

The House in which the School Began Frontispiece 

Issac Parker, First Royall Professor facing page 2 

Joseph Story . . . ., . 12 

Harvard College 1 832-1 840 showing the original Dane Hall ... 16 

Nathan Dane 68 

Dane Hall about 1845 9c 

Austin Hall 104 

Langdell Hall 128 



OflRicers of the H. L. S. Association for 1916-1917 . . Page 3 of Cover 
•- 

PUBLISHED FOR DISTRIBUTION 

TO the 

GRADUATES OF THE LAW SCHOOL 

^AJ^\ V<-v-:> \'~::y. BY 

THE/1 HARVARD LAV^ SCHOOL ASSOCIATION 



V! 



THE PLIMPTON PRESS 
NORWOOD, MASS. 



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TF<. TO 
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NOTICK 



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SlNCl'v tin- plan for llir Drj^anization of (he Centennial Anniversary 
on June iqIIi and 2otli were announced, iind since this paniphlil 
went to press, further developments have inade it necessary to post 
pone the celebration of the anniversary indefniitely. 

The committee hopes that the circuhition of this pam|)hlet may to 
some extent take the place of the celebration in focusing? the attention 
of the alumni on the work of great law schools aii<l their peculiar value, 
at periods like the present, in the history of popular government. 

If the alumni will read this account of the School and its develop- 
ment and reflect on the signidcance of the service of scattering through 
the country highly trained minds for the practical study of the nudti- 
tude of i>rol)lems of civil liberty under law, the uni(|ue opportunity 
offered by this anniversary, which is described in tht' preface, and to 
take advantage; of which I he celebration was planned, will not have 
been wholly lost. 

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THE HARVARD LAW SCHOOL 

CHAPTER I 

HISTORY OF THE SCHOOL 

UNTIL the year 1784 the American bar had been 
recruited from students apprenticed to attorneys, 
or at any rate persons who learned law by service in 
the office of a lawyer. In the course of time The 
certain lawyers obtained a reputation as good Beguming 
instructors, and their offices were resorted to by a number 
of students. These were often practitioners in the coun- 
try, where a smaller volume of business left a man more 
time for the instruction of pupils. Thus, when Kent 
was a student in the office of Judge Benson of Pough- 
keepsie, he had five fellow-students. Shearjashub Bourne 
of Barnstable, Massachusetts, taught a considerable num- 
ber of lawyers, among whom were Chief Justice Smith, 
of New Hampshire, Chief Justice Mellen, of Maine, and 
Judge Davis of the Federal court. Such an office was 
that of Judge Tapping Reeve, of Litchfield, Connecticut, 
in which in 1784 (or perhaps in 1782) was launched the 
first school of the common law in America; the transi- 
tion was imperceptible between the law office and the 
law school. 

The student in a law office read such books as happened 
to be there; and, if his teacher were conscientious, 
talked over the books with this preceptor. But there 



1"^ 



,# 






could have been no idea of class work. Though several 
of the students were together in an office, each must have 
pursued his own course; there could in general have 
been no set instruction before the time of law schools. 
With the beginning of the Litchfield school, however, 
class work began. The teachers in that school divided 
the law into a number of topics, and they lectured in 
turn upon each of the topics, devoting eight or ten lec- 
tures to each. The students were expected to take down 
the lecture and to copy their notes into books; and 
copies of these notes, each copy bound in about three 
volumes, are preserved in the Harvard Law Library. 

On May 26, 1778, Isaac Royall, a wealthy citizen of 
Massachusetts, then resident in London (he strenuously 
denied that he was a Tory refugee), made his will, and 
in it provided for "a Professor of Laws in (Harvard) 
College or a Professor of Physick and Anatomy, which- 
ever the said Overseers and Corporation shall judge to 
be best for the benefit of said College." Royall died in 
1 781; but it was more than thirty years before the Cor- 
poration got together the proceeds of this legacy. Before 
1815 they succeeded in collecting a sum of money which, 
with accrued interest, amounted to about seventy-five 
hundred dollars. On August 18, 1815, the Royall Pro- 
fessorship of Law was established, and Isaac Parker, 
Chief Justice of Massachusetts, was elected to the office. 

In the thirty-seven years between the date of Royall's 
will and the election of the first Royall Professor of Law, 
several such professorships had been established at other 
institutions. The earliest was at William and Mary Col- 
lege, where the Commonwealth of Virginia established 
a Professorship of Laws during the year 1779-80, with 
the celebrated George Wythe as Professor. Judge James 
Wilson was Professor of Law at the College of Philadel- 
phia (now the University of Pennsylvania) in 1790, and 
James Kent at Columbia College in 1793. The lectures 




ISAAC PARKER 



Associate Justice of the Supreme Judicial Court of Massachusetts 1806- 1814, 
Chief Justice 1814-1830, first Royall Professor of Law 1815-1827. {From a portrait 
in the Social Law Library in Boston.) 



of these professors, like those of the first Royall Pro- 
fessor, were delivered chiefly to undergraduates. 

The duty of the Royall Professor was not to teach law 
to professional students. The endowment, as has been 
seen, was small, affording compensation for a few lectures 
only; and no time for more regular instruction could be 
spared from his engagements as head of a busy circuit- 
riding court (for at that time the Supreme Judicial 
Court of Massachusetts sat in each county in the Com- 
monwealth, which then included Maine). The audience 
offered him was merely a voluntary meeting of College 
seniors and resident graduates, with perhaps a sprink- 
ling of Boston lawyers; the same sort of audience to 
which the professors of law in the other colleges were 
lecturing. 

Judge Parker's appointment did not involve the crea- 
tion of a new department of the University; but several 
circumstances might have suggested such a new depart- 
ment to those in authority. 

President Kirkland, who had spent some time in the 
German universities, introduced the elective system, un- 
doubtedly in imitation of the German practice; and the 
organization of the German universities into several 
faculties must have suggested to him a separate faculty 
of law, as well as of divinity and medicine. Indeed, 
the separate schools of divinity and medicine were 
already formed or forming. Judge Parker himself, in 
his inaugural address (in April, 1816), had hoped that at 
some future time ''a school for the instruction of resi- 
dent graduates in jurisprudence may be usefully ingrafted 
on this professorship"; and this opinion seems to have 
been shared by many enlightened members of the bar. 
Whether the initiative came from the President or the 
Professor can probably never be known. On May 17, 
1 817, Judge Parker presented to the Corporation a plan 
in writing for a law school, which was adopted by the 

[3] 



Corporation on the same day, and Asahel Stearns was 
immediately elected University Professor of Law to 
take charge of the School. Such a step must obviously 
have been debated informally for several meetings; and 
the choice of the new professor required time. Judge 
Parker's plan must therefore be regarded not in any sense 
as the suggestion upon which the School was founded, 
but merely as the formulation of a plan already suffi- 
ciently considered and agreed upon. 

The vote establishing the School provided for the ap- 
pointment of a "University Professor of Law, who shall 
reside in Cambridge, and open and keep a school." It 
was to be his duty "to prescribe a course of study, to 
examine and confer with the students upon the subjects 
of their studies, and to read lectures to them appropriate 
to the course of their studies, and their advancement 
in the science, and generally to act the part of a tutor 
to them, in such manner as will improve their minds and 
assist their acquisitions." He was to be paid by the fees 
of the students. This was expressly declared by the 
Corporation to constitute "a new department at the 
University." 

Having provided a professor, it was next necessary 
to assign a building. The College owned several dwelling- 
houses in Harvard Square; and one of them, the house 
formerly occupied by President Webber while he was 
Professor of Mathematics, and later by Professor Farrar, 
and in 1817 called "Second College House" or "College 
House Number Two," was chosen for the use of the 
School. It was an attractive two-story brick building, 
with a gambrel roof; and it was quite appropriate for 
a law school because it stood next the county court house. 
The court house then stood where the building of the 
Harvard Cooperative Society now stands, and Second 
College House was fifty feet further north. Three rooms 
on the ground floor were assigned to the School. One 

[4] 



of them was Professor Stearns' office; another room, 
thirty feet long, housed the hbrary and was also used 
as a lecture room; the third was a small room for the 
librarian. 

The story of the collection of the meagre library is 
told elsewhere; but the fact that these two rooms held 
professors, students, and library for fifteen years is 
sufficient witness of the insufficient number of books. 

Professor, building, and library being provided, the new 
school opened its doors to students. But the students 
came slowly. They were excellent in qual- The School 
ity; four out of every five were bache- "'^^^'^ ^^^^'"'^^ 
lors of arts. But the average number under Stearns 
was less than nine new men a year. They entered and 
left irregularly through the year, a fact that clearly 
indicates the desultory nature of the instruction. In- 
deed, the School under Stearns still retained many traces 
of the lawyer's office, in combination with methods of 
the Litchfield school. The chief work of the students 
was private reading of books recommended to them, 
with quizzes by the professor upon the passages read. 

The School had, however, some distinct advantages 
over the old law-office training. A moot court was held, 
in which points of law were argued by the students. 
The records of the court from its establishment in 1820 
to 1828 are still preserved, and contain formal reports of 
the meetings, the questions argued, and the decisions, with, 
oftentimes, a full copy of the pleadings and the judge's 
opinion. Stearns was Perpetual Chief Justice, while an 
Assistant Justice, elected from the students, sat in his 
absence. Written lectures were also delivered by the 
professors, which at the end of the period were described 
by Stearns as embracing "a general course of legal in- 
struction, in which those parts of our system of juris- 
prudence in which we do not adopt j the law of England 

[5] 



are particularly noticed and the grounds of our departure 
from it are explained and illustrated by the decisions and 
practice of our own courts." Although these lectures were 
evidently modeled after those at Litchfield, they were less 
frequent. This inferiority in class work was little more 
than formal, for the Litchfield students, like those in the 
mediaeval universities, had to get their knowledge orally 
for lack of books. Having written out their own treatise, 
they proceeded to an individual study of it, while the 
students at Harvard could use the library. Yet it must 
be admitted that the new Law School showed no im- 
provement in method over the old. 

On the other hand, the foundation of a professional 
school of law at a university meant a far greater step 
forward than that taken by Judge Reeve. No English 
or American university had created a distinct school 
or faculty of law, but only professorships of law. With 
two professors of law teaching a body of students 
separately registered, the Harvard Law School was the 
first university school of law, as it is the oldest law 
school now existing, in any common-law country. To be 
sure, its imposing Faculty of Law was a bit mislead- 
ing. For the twelve years of his incumbency. Judge 
Parker had no closer direct connection with the Law 
School than was afforded by the attendance of the stu- 
dents at his lectures and a vague understanding that he 
was occasionally to visit the School and examine the men. 
The working member of the Faculty was Asahel Stearns. 

Stearns, upon his election, removed to Cambridge and 
took charge of the School; but his whole attention was 
not devoted to his professional duties. His reports to 
the President, made during the last three years of his 
incumbency, show an amount of time spent upon his 
duties at the School which can have occupied scarcely 
a third of his working hours; though the supervision of 
the mo3t court may occasionally have increased by half 

[6] 



the time spent at the School. He had never reHnquished 
the office of County Attorney, which he held at the time 
of his election; indeed, his meagre income from the stu- 
dents could never have furnished him a decent support. 
That he did all he could to perform the duties of his 
professorship is unquestionable; indeed, at one time he 
complained of the amount of his work, and asked for a 
colleague. But the new venture in education needed 
men with vision to see and skill to bring to pass 
the possibilities of university study of law in America. 
Neither Stearns nor Parker had just the skill or the vision. 
The number of students, never large, toward the end 
of the period rapidly decreased. The University suf- 
fered the mortification of seeing her most promising sons 
seek legal training in an office instead of in her school 
of law. 

There were undoubtedly many reasons for this fall- 
ing-off quite independent of the quality of instruction: 
business depression which lessened the number of law 
students everywhere; the multiplication of law schools 
in other parts of the country; the difficulty of traveling; 
the greater expense of education in Cambridge; the 
inadequate quarters of the School. The fact remains, 
however, that Stearns taught law no better than others, 
that he possessed no general reputation, and that he did 
not so impress himself upon his pupils as to make them 
warm advocates of the School in the regions to which they 
went. The fame of the School was not propagated 
through the country by its graduates. 

Early in the twenties the Corporation attempted to 
secure as an additional teacher a man of national repu- 
tation. Several times during the decade Judge Story 
of the United States Supreme Court was invited to 
become a professor; but he could not quite decide to 
accept. It was obvious, however, that the Faculty must 
be strengthened if the School were to live and grow. 

[7] 



As a first step, the Royall Professor must devote him- 
self to teaching professional students; and since Judge 
Parker could not spare time for it, some one else must 
be found to take his place. In the fall of 1827 his resig- 
nation was requested — rather abruptly and ungrate- 
fully, perhaps, considering his services to the School — 
and on November sixth he handed in his resignation, 
which was at once accepted. A few months later Kirk- 
land gave up the presidency of the University. The 
year 1828 was passed in discussion of policies and can- 
didates for the presidency; the advocates of a sound 
business policy finally triumphed by the election, early 
in 1829, of Josiah Quincy. 

Meanwhile, the Corporation were expressing dissatis- 
faction with the work of Stearns; and a committee was 
appointed to confer with him before Quincy's inaugu- 
ration, who informed him that the Corporation regarded 
his administration as a failure. In a manly letter, 
explanatory rather than apologetic, he resigned. One 
passage in the letter is of special interest. *'The effect 
which the Law School has had in raising the general 
standard of professional education, by introducing a more 
methodical and thorough course of instruction, has of 
itself, if no other benefit had resulted, more than com- 
pensated for the expenditure. The course of instruction 
pursued here, which was drawn up under the eye of some 
of the present members of the Corporation, has not only 
been adopted in other law schools, but more than sixty 
professional gentlemen in this and adjoining states have 
applied for copies for the use of their students. And 
what is still more important, students in law offices have 
been more attended to and better instructed in conse- 
quence of the establishment of the School." The resigna- 
tion was accepted by the Corporation in a letter courteously 
recognizing his attainments and his diligence, and the 
way was open for a complete change in the School. 

[8] 



Various opinions, severe or kindly, have been ex- 
pressed with regard to the work of Parker and Stearns. 
They did plan and start a great enterprise. If Parker 
had found an Ames to catch up his idea and touch it 
with Hfe, the School might much earlier have affected 
the thought and training of the American bar; or if 
the genial and rather easy-going Stearns had served with 
one of his more exact and profound successors, he might 
have popularized the university study of law without 
depriving it of strength and vigor. As it happened, 
however, neither could supply what was missing in the 
other; and the critical verdict upon their work must be, 
that it failed because it lacked the vigorous purpose of 
true scholarship. They had only opened a lawyer's 
office to students, had superintended their reading, fur- 
nished their books, and talked to them about various 
branches of law. With the resignation of Stearns this 
experiment came to an end forever in this country; 
and some more scholarly and helpful method had to 
be invented for giving students legal instruction and 
training. 

Nathan Dane was a distinguished lawyer of Massa- 
chusetts, former member of the Continental Congress, 
author of the "Ordinance for the Govern- The School 
ment of the Territory Northwest of the Ohio," "°^^^ ^^°^ 
and prominent Federalist politician. He began in 1800 
and finished in 1826 the publication of his Abridg- 
ment of American Law, a work which then became in- 
dispensable to an American lawyer, and still has a 
value for its reports of early American cases not to be 
found elsewhere. In the preparation of this work he 
was following the example of the great English lawyer, 
Viner, whose Abridgment was yet authoritative. 

Viner had founded the Vinerian Professorship of 
English Law at Oxford from the royalties of his book; 

[9] 



and the published lectures of his first professor, Black- 
stone, had become a legal classic. Viner's example, as 
has been seen, had been followed by benefactors in 
America. Dane, however, had greater reason than they 
for fostering legal learning. He had already followed 
the earlier example of the Englishman; what so natural 
as that he, a Federalist and admirer of all things English, 
should carry the imitation further, and establish a profes- 
sorship of American law at Harvard from the proceeds 
of his Abridgment.? This in fact he did, devoting ten 
thousand dollars to the foundation; and desirous of 
stimulating legal authorship like Viner, he provided that 
the lectures delivered on the foundation should be 
published. Story's series of Commentaries, GreenleaPs 
Evidence, Parsons' well-known works, and Langdell's 
published writings have all been issued in compliance 
with this provision. 

The Corporation accepted the gift on June 3, 1829, 
and appointed as first Dane Professor Joseph Story, 
whom Dane had nominated. Story had already refused 
the Royall Professorship; but he was willing to become 
the head of the School and devote to it all the time which 
could be spared from the duties of his judgeship. He 
was, however, to have an assistant, who should give his 
entire time. Story, in his own words, was to aid the 
students "by occasional explanations and excitements," 
while the other was to do *' drill duty." For this task 
the Corporation on June 11, 1829, appointed as Royall 
Professor John Hooker Ashmun of Northampton, who 
had been an instructor in Judge Howe's law school at 
that place. 

The new professors were inaugurated on August 25, 
1829, Story delivering an enlightened inaugural address. 
The School opened on September seventh, and at once 
attracted twice as many pupils as had ever been in attend- 
ance at the School at one time. This immediate success 

[lo] 



continued and increased during the whole period of 
Story's service. 

The chief event during Ashmun's professorship was 
the acquisition of adequate quarters. For three years 
the growing School continued in the small home of its 
infancy; and into it Story brought his large library, 
which the School had purchased. Just how large a 
portion of Second College House was then used for 
School work is not certain. Contemporary catalogues 
show that four upstairs rooms, numbered 6 to 9, were oc- 
cupied by students, and that of the three downstairs 
rooms number 3 was set aside for the librarian. Presum- 
ably rooms I and 2 were those originally devoted to the 
library and the professors' office. Unless the School had 
spread into the floor above, and it had not done so in 1825, 
these two rooms still constituted the entire space occupied 
by the reading room, the professors' studies, the lecture 
room, and the library with its three thousand volumes. 
The need of a new building was great. Dane again came 
to the rescue. He had intended to leave the amount needed 
for the purpose as a legacy to the School, but, appre- 
ciating its immediate requirements, he advanced the 
money during his lifetime. He thus had the satisfac- 
tion of seeing the School properly housed three years 
before his death, in 1835, at the ripe age of ninety-two. 
On September 24, 1832, the "Dane Law College" was 
dedicated, to continue as the home of the School for more 
than fifty years. 

Dane Hall in its first dozen years was a small oblong 
building with an ornamental portico in front and 
somewhat more spacious within than the earlier home 
across the street. The life of the School in its new sur- 
roundings must still have been simple; and the direct 
contact of the students with so distinguished a lawyer 
and so kindly a friend as Judge Story was in itself a liberal 
education. A pretty story is that of the Judge coming 

[ii] 



into Dane Hall, one cold stormy morning, stamping off 
the snow, and saying to the students who crowded affec- 
tionately about him, "Gentlemen, this is one of the days 
when I would rather facit per alium than facit per se." 
"Do you remember," Dana wrote to Story's son, "the 
scene that was always enacted on his return from his 
winter session at Washington? The School was the 
first place he visited after his own fireside. His return, 
always looked for and known, filled the Library. His 
reception was that of a returned father. He shook all 
by the hand, even the most obscure and indifferent, 
and an hour or two was spent in the most exciting, 
instructive, and entertaining descriptions and anecdotes 
of the events of the term." 

Ashmun, throughout his period of service, had been 
handicapped by ill-health; and on April i, 1833, he died 
suddenly at the age of thirty-two, having in less than 
four years of service impressed his personality upon his 
colleagues and his pupils, who included some of the 
School's greatest graduates, although, feeble of body as 
he was, he could not in so short a time permanently 
affect the history of the School. 

Ashmun appears to have continued the method of 
instruction of Stearns ; but he was a man of greater force 
of mind. According to Sumner, he was "a lawyer 
of remarkable acuteness and maturity," who had the 
teacher's gift of exciting the desire for knowledge in the 
student. Story was the kindly master who in his lec- 
tures smoothed the rough places and was profuse with 
instruction and help; we may suppose his lectures, like 
his books, to have been learned, fluent, often original 
and profound, sometimes, however, dodging a difficulty 
rather than trying to overcome it. Ashmun furnished 
the "drill," the exactness and completeness of learning 
which was necessary but beyond Story's powers, in 
view of his other pressing engagements. Judge Hoar 

[12] 




JOSEPH STORY 

Associate Justice of the Supreme Court of the United States 1811-1845 and 
Dane Professor of Law at the Harvard Law School 1829-1845. {From an old print.) 



speaks of Ashmun as a "model teacher"; and his epitaph, 
placed by his students on a monument erected by them 
at Mount Auburn, fondly proclaims that ''he had the 
beauty of accuracy in his understanding, and the beauty 
of uprightness in his character." 

On April 23, 1833, only three weeks after Ashmun's 
death, Simon Greenleaf, of Portland, Maine, was ap- 
pointed to the vacant professorship. He was a friend 
and correspondent of Story, and had been reporter of 
decisions in Maine. A temporary employment to carry 
on the School until the end of the academic year was 
necessary; and James C. Alvord, a recent student in 
the School who had already achieved a marked success 
in practice, was engaged for the position. Greenleaf 
began work with the beginning of the academic year 
1833-34, ^^d at once became a power in the School. 
To his progressiveness was probably due, in January, 
1835, the appointment of Charles Sumner as instructor; 
a position which he held from time to time for ten years. 
In the same year another new step was taken in the 
division of the School into classes, according to profi- 
ciency. It is clear that lectures or conferences attended 
by the whole School, without reference to previous 
knowledge or to progressive power of assimilating knowl- 
edge, can never be of the same value as lectures on a 
basis of previous knowledge of law. The immediate 
effect of this change was to standardize the term of 
attendance. Before 1836 there was no regular time 
for entering or for leaving. Beginning with that year 
men rarely left except at the end of a term, that is, in 
January or July; and while they did not always enter 
at the opening of the term, it became more and more 
usual to do so. The advantage of the new practice to 
the class work can hardly be overstated. 

At the beginning of his professorship Story laid stress 
upon the scientific aspect of law; and this was also em- 

C13] 



phasized by Greenleaf. As Richard Henry Dana said, 
entering the School in 1837, the students were "invited 
to pursue the study of jurisprudence as a system of 
philosophy." A few years later Greenleaf stated, "The 
attention of students is constantly drawn to the law as 
a science"; and added that, as a result, the law was 
"mastered with a facility and readiness, and in a spirit 
of sound philosophy, to which the student in his private 
clerkship is almost totally a stranger." 

And so, not slothfuUy, for both professors confessed 
that they studied daily to increase in teaching skill as 
well as in legal learning, but quietly and uneventfully, 
growing ever in numbers and in grace, the School went on 
during the remaining years of Story's life, an institution 
of one hundred and fifty students, its fame spreading 
from America to Europe. English lawyers testified that 
the course was a great deal deeper and fuller than at 
Oxford, and that the method of legal education had 
very much raised the character of the profession. 

Both Story and Greenleaf felt the need of additional 
instruction in the Law School. They had at one time 
suggested the appointment of an additional professor of 
law. Story, however, finally decided to resign from the 
bench and devote his entire time to the work of the School. 
All arrangements had been made when his sudden death 
in the summer of 1845 prevented the consummation of 
the plan. 

The true founder of the School, Story brought to the 
work an enthusiasm for law as a science and a real af- 
fection for his foster-sons, the students, which at once 
became an inspiration to the young men gathered to 
learn from him. His students, to use Sumner's affec- 
tionate language, "love him more than any instructor 
they ever had before. He treats them all as gentlemen, 
and is full of willingness to instruct. He gives to every 
line of the recited lessons a running commentary, and 

C14] 



omits nothing which can throw light upon the path of 
the student. The good scholars like him for the 
knowledge he distributes; the poor (if any there be) for 
the amenity with which he treats them and their faults." 

Behind a great institution there must always be a great 
personality; and such was Story. His position in the 
highest court in the land, his esteem among lawyers 
throughout the nation, first brought him students; but 
his geniality, his affectionate dignity, his enthusiasm 
for the School and all connected with it, the interest 
and the authority of his somewhat desultory teaching, 
all combined to secure its coherence and growth. He 
found it a lawyers' office, bereft, as he asserted, of stu- 
dents; he left it established and important, the ac- 
cepted model of schools of law wherever the common 
law prevailed. 

His death threw upon Greenleaf the whole burden of 
instruction. With the assistance of Sumner and a 
young graduate, John C. Adams, the year 1845-46 was 
passed without change in methods or policy. But 
with the election of William Kent as Royall Professor 
(Greenleaf passing to the Dane Professorship) an event 
of great importance took place; a curriculum made up 
of courses of instruction was substituted for the former 
system of the successive study of particular treatises. 
While this probably meant little immediate change in 
practice, the curriculum and courses of the present time 
could never have existed without such a change in arrange- 
ment, however formal it may have been. In no other 
way did Kent's too short term of service affect the life 
of the institution; and when this period came to an end 
with the appointment of Joel Parker as his successor 
in the Royall Professorship, and the almost simultane- 
ous resignation of Greenleaf, it was still the flourishing, 
enthusiastic, hopeful, but somewhat primitive School of 
Story. 

[IS] 



The task of the Faculty during this period was the 
development of a new and better system of instruction, 
and the gathering of a large body of students from all 
parts of the country, thus nationalizing the School. 
The young men whom Story's fame and the charm of 
his personality drew about him were to be leaders of 
their generation. They received from him an inspira- 
tion and a love for the scientific part of the law which 
set them well on their way to an intellectual life. Ben- 
jamin R. Curtis, Charles Sumner, Richard Henry Dana, 
William Maxwell Evarts, Ebenezer Rockwood Hoar, 
James Russell Lowell, and Rutherford B. Hayes, to name 
a few of the great souls of their generation who sat under 
him, caught fire from his spirit and gave to the law they 
practiced and the politics they guided an intellectual 
depth which was lacking in the life of the succeeding 
generation. From Greenleaf the students gained a 
sounder knowledge of law than his predecessors had in- 
stilled; but the School was still rather the inspirer of 
ideals than the moulder of legal thought. 

After a disquieting but vain attempt to persuade 
Rufus Choate to accept the Dane Professorship upon 
The School GreenlcaPs resignation, the Corporation filled 
Parson^^and'^' the place by the appointment of Theophilus 
Washburn Parsous, July IS, 1848. 

The end of the preceding period had seen the School 
grow too large for the contracted quarters of Dane Hall, 
and an addition to the old building was required. This 
took the form of a transverse addition across the rear 
end, larger than the original building. This addition 
contained a large reading room and library, and a lecture 
room above. The old portion of the building was in 
large part devoted, on the ground floor at least, to rooms 
for the professors. In this enlarged building the third 
period of the School began. The patriarchal organiza- 

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-53; 



tion of Story's time was perforce abandoned. No 
longer could the head of the School greet his pupils 
before the big fire, and regale them with anecdotes of 
Washington life. Each professor retired to his room, 
where he read and wrote, and received his pupils one by 
one; the students were shepherded in their reading 
room, under the direct control of John Sweetman, the 
janitor, — a unique personality who made the library 
rules, picked up the books after the students, and dis- 
cussed with them abstruse points of law, besides going 
to lectures and making suggestions to the professors 
for their improvement. 

The serious difficulty to the recently appointed pro- 
fessors of undertaking their novel work was somewhat 
lightened by two instructors: Franklin Dexter and 
Luther Stearns Gushing. Dexter (1793-1857) had gradu- 
ated at Harvard College in 181 2; he was one of the 
foremost lawyers at the Boston bar. His lectures in 
Constitutional Law evidently impressed Senator Hoar, 
who, in his Autobiography half a century later, names 
him first of all his law teachers; but his one year of 
teaching made no great impression on the School. 
Cushing is best known as a Reporter of the Supreme 
Judicial Court of Massachusetts, and as the author 
of an authoritative treatise on Parliamentary Law. 
He taught that subject for three years, and was also 
the first person to conduct in the School a course 
upon the Civil Law. Parsons urged that he be made 
professor, but the Corporation declined to follow the 
recommendation. 

In the autumn of 1849 Frederick Hunt Allen was 
chosen as University Professor of Law. He had won a 
high place at the bar in Bangor, and was ** strongly 
recommended by many Maine lawyers," but the ap- 
pointment can hardly be regarded as more than a curious 
accident. He seems to have been no better qualified 

C17] 



for the position than half the country judges of New 
England. The experiment was not a success, and at 
the end of the year he was not reappointed. 

On January 31, 1852, Edward G. Loring became a 
lecturer, and he conducted courses and sat in the moot 
court for two years until, in 1853, the number of students 
had so increased that a new professor was felt to be 
necessary. Parker and Parsons favored the appoint- 
ment of Loring, "whose services so far as we know are 
very useful and entirely satisfactory." The Corpora- 
tion elected him a professor, but unfortunately he had 
for more than ten years been United States Commis- 
sioner, and would be called upon to act in fugitive slave 
cases, and the anti-slavery men on the Board of Over- 
seers, then a political body, opposed confirmation. 
The Corporation thereupon withdrew his name. Loring 
continued to serve as Lecturer, to the apparent satisfac- 
tion of the students, until 1854. In that year he 
was called upon to issue a warrant for the apprehension 
of Anthony Burns, an alleged slave fugitive, to hear the 
testimony, and to order his return to slavery. This 
was one of the cases which aroused the anti-slavery 
feeling of Massachusetts; and Loring became intensely 
unpopular for his part in the matter. The students, 
the Faculty, and the Corporation stood loyally by him, 
being unable to see why he should be detested for doing 
his plain legal duty; and he was reappointed Lecturer 
for the year 1854-55. The Overseers, however, over- 
ruled the appointment. 

In his place the Corporation appointed, first as Lec- 
turer and then as University and Bussey Professor, Emory 
Washburn, lately Governor of Massachusetts. From this 
time the School was under the direction of the trium- 
virate, Parker, Parsons, and Washburn. 

From the point of view of the School's progress this 
period was an uneventful one. The curriculum and the 

[18] 



general methods of instruction changed only gradually, 
if at all; the number of students, leaving out the years 
of civil war, increased and then fell back; the life of the 
students, their methods of study and devotion to work, 
remained about the same. The names of Story and 
Greenleaf were still the names to conjure with, and their 
characters, qualities, and methods were curiously re- 
peated in their successors. Parker recalled Greenleaf 
in the exactness and profundity of his learning, the 
sobriety of his character, and his power to stimulate 
the minds of the best men. He was the stiff and formal 
man of law, learned and profound — quite too profound 
to reach the average mind, but regarded as ''the fountain 
of jurisprudence" by his most brilliant pupils; a hard 
fighter, grim and sarcastic against what he regarded as 
wrong; not fluent and easy to follow, and even obscure 
at times; but manly, forceful, reliant, and reliable. 
Parsons was Parker's complement. Like Story he was 
amiable, enthusiastic, anecdotal, and even chatty, de- 
lighting in converse with the students, and not given 
to over elaboration or subtlety in his teaching. Genial 
and frank in manner, fluent and convincing in statement, 
clear and skillful in exposition, interesting and impres- 
sive, he was an ideal teacher for the average student, 
and persuaded the very ablest that he was "almost, 
if not quite, a man of genius." Washburn was the best 
loved of the three. He took a great interest in every 
student; his room was open to his pupils at all times. 
He lectured vividly and eloquently; he was one of the 
few teachers in the history of the School who have used 
that method. He made the dry rules of Property live, 
and his lecture room was a place of enthusiasm. 

The other two men used a different method. Their 
teaching began with a continuation of the older system: 
study of a required text and an examination in class upon 
the text, with verbal comments by the instructor. As 

[19] 



time went on, the instruction tended to take the form 
of lectures on the subject, with occasional quizzes of the 
students; but the change, if there was one, was in em- 
phasis, not in kind. Judge Parker made an exact assign- 
ment in the textbook and covered it faithfully. Parsons 
also used a textbook, but he encouraged discussion, 
explained extraneous difficulties, and showed in many 
ways a better teaching method. In every period of the 
School's history, but particularly in the School of Parker, 
Parsons, and Washburn, the very differences of methods 
of instruction were in themselves an education. 

The only temporary appointment during the adminis- 
tration of these three men was that of Richard Henry 
Dana, as Lecturer on the Law of Nations from 1866 to 
1868. 

Politics shared the thoughts and activities of profes- 
sors and students during this period. The earliest alumni 
association, the Story Association of 1850, was wrecked 
a-borning by reason of political feeling. It celebrated 
its first year by a dinner with an oration by Rufus Choate ; 
the oration was eloquent, sensible, even inspiring, but 
conservative. The radicals of the day attacked it as 
unsuited to do honor to Story the progressive; the con- 
test raged, and the Association died. Soon after this 
came the denial of a professorship to Edward G. Loring, 
because he had stood up against the prevailing political 
opinions of his time. Washburn indeed proved a pro- 
fessor who could let politics alone, though in time of 
need he served his country in the home guard. But 
Parker and Parsons plunged into political discussions, 
and maintained them until the end of the period. Both 
at first took the anti-slavery side ; but after the outbreak 
of the Civil War Parker's natural conservatism began 
to control him, and he was soon engaged in an acrimo- 
nious contest with his more radical colleague. This 
contest, and others similar, embittered the last years 

[20] 



of Parker's service, and no doubt influenced his resig- 
nation, in 1868. 

"The School of Parker, Parsons, and Washburn" 
was a real institution of learning. The professors were 
men of power and impressed their students as only 
really great teachers can; the students regarded the 
School as ''without a rival," to use the phrase of Mr. 
Justice Brown. In the opinion of Mr. Joseph H. Choate, 
this was the golden age. It is not surprising that the 
Visiting Committee for 1864 reported that they "were 
entirely satisfied with the condition of the School." 

And yet this institution, led by men of such varied 
yet precious gifts, with a student body drawn from east, 
south, and west, enthusiastic and reasonably diligent, 
became as years went by an essentially unscholarly place. 
Science, the aim of Story and Greenleaf, was no longer 
regarded as the object of study in a law school. The 
purpose of students of this time in the School, as well as 
in the later career of their generation at the bar, usually 
was practical and self-centered in the highest degree. 
There was, as Judge Phelps has said, "a distinct anti- 
Story reaction." The library was richer in the literature 
of the foreign law than any other in the country; but 
"not one of the works of these foreign jurists was read 
by any student." Judge Blake, insisting that the 
students of this time "did not waste their opportunities," 
adds that "twenty-five per cent would have passed 
a satisfactory examination in the courses there pre- 
scribed." Mr. Joseph Choate says that "whoever 
wanted to learn, learned quite enough." 

There was an attempt to stimulate scholarship by the 
offer of prizes for legal essays; and during this period 
the School conferred such prizes on many students who 
subsequently justified the honor. For a few years stu- 
dents of merit and need were honored by appointment 
as assistants to the professors; assistants, not in teaching, 

[21] 



but in investigation. To this practice we owe the 
remarkable work of Langdell, while a student, upon 
Parsons' Contracts, — work which was the precursor of 
his epoch-making Cases on Contracts. The moot courts 
carried on by the Faculty were also a stimulus to the 
study of law, and a student's organization for debate, 
called first the Parliament and later the Assembly, 
pursued a chequered career, troubled by the party 
politics of the northern and southern students, and now 
and then suppressed by the Faculty. 

Yet at the end of this period of trial something was felt 
to be lacking. The satisfaction with the School, ex- 
pressed by the professors year after year, seemed per- 
functory; students began to fall off, and soon after 
Judge Parker's resignation, the Visiting Committee of 
the Overseers reported, in 1869, that in their opinion 
the condition and prospects of the School "should be 
carefully considered by a committee." This report 
led to the resignation of Professor Parsons. The period 
ended, like the first period, in a verdict of failure, ren- 
dered by a jury of eminent lawyers; and although 
Parker, like Stearns, vigorously attacked the verdict 
as unjust, it has been approved by time. 

What reasons can be given for this failure.? Lack 
of vision, of progress; self-satisfaction apparently jus- 
tified by the continued outward success of the School; 
failure to read the signs of the times. 

Everything about the School was stereotyped. For 
twenty years the language of the Catalogue as to en- 
trance, course of study, and degree was not changed by 
a letter. There was no recorded faculty meeting during 
the entire period. The Corporation framed the general 
rules for the School, in which the Faculty were en- 
dowed with the following functions: to license boarding- 
houses and public meetings, to administer discipline, 
to recommend candidates for degrees, to make regula- 

[22] 



tions for the use of the hbrary. Even this last power 
of the Facuhy was aboUshed in 1855; and from that 
time the library rules were made in theory by the Cor- 
poration, in practice by the janitor. A Corporation 
making regulations for the School, but never entering 
it, and a Faculty that never met — how could they face 
the new needs which arose with war and reconstruction, 
inflation and the new industrialism? 

A public indictment was brought by the American 
Law Review. "For a long time the condition of the 
Harvard Law School has been almost a disgrace to the 
Commonwealth of Massachusetts. We say 'almost a 
disgrace,' because, undoubtedly, some of its courses and 
lectures have been good, and no law school of which 
this can be said is hopelessly bad. Still, a school which 
undertook to confer degrees without any preliminary 
examination whatever was doing something every year 
to injure the profession throughout the country, and to 
discourage real students. So long as the possession of 
a degree signified nothing except a residence for a certain 
period in Cambridge or Boston, it was without value." 
This rather bumptious criticism is obviously exaggerated, 
and Parker's indignant rejoinder may be viewed sym- 
pathetically; the facts stated afTected only the degree, 
the guinea's stamp. The character of the instruction 
and its effect on the student body made the School, and 
the School was, so far as it went, good. It failed because 
it remained content with the excellence already attained 
without striving to go forward. 

Nothing was done to impose requirements for admis- 
sion except a certificate of good character, which had been 
sufficient for most of the previous history of the School. 
It is true that down to 1865 about two-thirds of the 
students had been college graduates, but the proportion 
began to diminish after 1845, and from 1865 to 1870 it 
suffered a sudden reduction, very likely as a result of 

C23] 



the Civil War; during these years the number of college 
graduates was considerably less than half of the entire 
number. This diminution in quality of the students 
doubtless had its influence in laying the work of the 
School open to criticism; but the Faculty remained 
quiescent and felt no need of any improvement. 

Nor had any important change been made in the course 
of study during the period. The traditional subjects 
were still pursued, through the use of textbooks, and 
the textbooks were changed only to introduce the new 
works of members of the faculty. Room was found 
for a few years for a course on Arbitration, but the 
subject of Torts they never discovered, though it 
was growing rapidly in importance during the period. 
Most of the courses were given only in alternate years, 
thus securing the teaching of all the subjects in the 
curriculum in time, but a student could enter, take all 
the courses offered to him, and receive his degree after 
a year and a half of residence without a chance to pursue 
such fundamental topics as Contracts, Agency, or Evi- 
dence. Neither attendance nor preparation was required 
for recitations or lectures, and as a considerable part of 
the class sat in the seats of the unprepared, the exercise 
furnished no test of the work done by a student. 

There was no other test. The degree, given for the 
payment of three term fees, was more expensive, but in 
other ways indistinguishable from the contemporary 
degree of Master of Arts. The written examination, 
on which the degree now rests in every American uni- 
versity, was not known. The preparation for examina- 
tion, the review of the year's work, which is the only 
really constructive work required of a student of law, 
troubled not the nerves of the weakling. "There was 
no cramming," says Mr. Joseph Choate, *' which is such 
a vitiating feature, in my judgment, in the modern 
methods." In fact, the degree was no warrant that 

[24] 



the holder of it had in any way mastered the difficulties 
of a single branch of the law. 

The attitude of the Faculty towards the School is 
typified by a sentence of their report to the President 
of the University, first invented in i860 and repeated 
unchanged each year until the end of the period: "There 
have been no new arrangements in relation to the or- 
ganization of the School or the course of instruction,'* to 
which was added, in later years, "The Faculty have 
nothing to add to their previous reports on these subjects." 

It would be unjust, however, to blame this intense con- 
servatism as if it were peculiar to the Harvard Law 
School. It was shared by every law school in the United 
States; one might almost say, by every institution of 
learning. Scholarship was at that time so universally 
conservative that this quality had come to be accepted 
as necessary to a scholar. The only criticism that can 
be leveled at Parker, Parsons, and Washburn is that 
they were not in advance of their time; but fortunately 
those men of light and leading, Mr. Eliot and Mr. Lang- 
dell, were soon to bring to the Harvard Law School the 
glory of leading in the reform of legal education. 

The appointment of Christopher Columbus Langdell, 
to succeed Parsons, was a personal act of the new Presi- 
dent. Eliot himself has stated the reason TheDeanship 
for his choice. Twenty years before, when ^fLangdeU 
the new President was a junior in college, he used to go 
often in the early evening to the room of a friend who 
was in the Divinity School. "I there heard a young 
man who was making notes to Parsons on Contracts 
talk about law. He was generally eating his supper at 
the time, standing up in front of the fire and eating 
with good appetite a bowl of brown bread and milk. 
I was a mere boy, only eighteen years old; but it was 
given to me to understand that I was listening to a man 

C25] 



of genius. In the year 1870 I recalled the remarkable 
character of that young man's expositions, sought him 
in New York, and induced him to become Dane Professor. 
So he became Professor Langdell." Langdell was at 
this time a rather obscure though far from unsuccessful 
laywer in the city of New York; member of a firm which 
gave to the United States an attorney general and a 
district judge, but himself known chiefly to a small 
circle of lawyers. Heretofore, in selecting a professor, 
the object of the Corporation had been to secure a man 
of mark, whose prestige would increase that of the 
school; a man who, by long practice in the law, had 
become familiar with the content of it. The principle 
which underlay Langdell's selection was quite other; 
as he himself explained, a teacher of law should know 
expertly not so much the content of the law as the method 
of studying it. "What qualifies a person, therefore, to 
teach law is not experience in the work of a lawyer's 
office, not experience in dealing with men, not experience 
in the trial or argument of causes — not experience, in 
short, in using law, but experience in learning law; not 
the experience of the Roman advocate or of the Roman 
praetor, still less of the Roman procurator, but the 
experience of the jurisconsult." 

For a long time the wisdom of this change remained 
doubtful in the mind of the American bar. As a protest 
against it, the Law School of Boston University was 
founded, having on its Faculty eminent members of the 
Boston bar, and for many years it was regarded as a 
more practical school for lawyers than the Harvard 
Law School. Not until Ames' appointment as assistant 
professor in the year 1873 can it be said that the new 
method of appointment was accepted even at Harvard. 

The School to which Langdell returned after sixteen 
years of uneventful practice in New York was little 
changed in character since his student days. However, 

[26] 



the senior professors had resigned ; the School was faUing 
off in numbers; the profession was beginning to feel that 
something of scholarship was lacking in its organization. 
But a new President was in office, and new statutes had 
been passed for the governance of the School. Two im- 
portant changes were required by the Corporation. The 
Faculty was to meet and choose a dean; and the degree 
was to be awarded only after examination. 

"The Faculty of each professional school," the new 
statute ran, "elects a Dean, whose duty it is to keep 
the records of the Faculty, to prepare its business, and 
to preside at its meetings in the absence of the President." 

In accordance with this statute the first recorded 
faculty meeting in the history of the School was held on 
September 27, 1870, with the President in the chair; 
and on motion of Professor Washburn, Langdell was 
elected Dean. 

The office thus outlined in the statute was little more 
than the secretaryship of the Faculty. There was no 
precedent for the interpretation of the provision; deans 
were novelties in American education, and Langdell 
was probably the first to head a faculty of law in the 
country. His election therefore meant nothing as to 
his position in the Faculty. Without a conscious purpose 
in the mind of the first incumbent, the function of dean 
might have come to be merely that of a clerk. But 
Langdell had a mission. The deanship was to be in his 
hands an instrument of reform. He was a strong man 
with a mind to do; his successor was another; and their 
terms of office, extending through critical years of legal 
education, fixed the office of dean of a faculty of law, 
for the entire country, as an office of leadership and of 
eminence. 

The new-fangled position was no sinecure for its first 
occupant. He came as a reformer; his two colleagues, 
Washburn and Nathaniel Holmes, who had succeeded 

C27] 



Parker as Royall Professor, were conservatives. The 
reforms he wished to institute were likely to diminish 
the students further rather than attract them. His 
predecessors had been willing to do things without con- 
sulting their colleagues, unless indeed they left the 
Corporation to do them ; he might have done as they did, 
made his new rules, secured the approval of the Cor- 
poration, and thus effected his reforms unopposed. 
But this was not Langdell's way. His loyal and justice- 
loving soul would have loathed such a victory. It was 
his nature to regulate every least act by some well- 
founded principle. Throughout his life as Dean, he was 
never content to justify action that he proposed by its 
intrinsic usefulness; he must elaborately consider its 
conformity to principles already laid down by the 
Faculty, or else present it as an application of some 
principle, not indeed previously acted upon, but of 
unquestionable legal validity. His remarks in support 
of proposed legislation had all the characteristics of 
judicial opinions; the recorded votes of the Faculty he 
regarded as judgments, and they were usually accom- 
panied in the record by brief lawyer-like reasons. Such 
a man could certainly not do without meetings of the 
Faculty. To them he turned to secure the reforms he 
sought: the revision of the curriculum, more stringent 
requirements for admission and for graduation, the stand- 
ardization and graduation of courses, a written examina- 
tion upon each course, and the lengthening of the term 
of study for the degree. On each of these reforms he 
must expect to find his two colleagues lukewarm or 
opposed to him. His reliance for accomplishing his 
plans must be upon his own power of persuasion, and upon 
the vote and influence of the President. 

To Eliot, though he was interested both by natural 
bent and by education in the scientific studies rather 
than the humanistic, and apparently never much in 

[28] 



sympathy with what must have seemed to him the arti- 
ficial and unscientific principles of law, we owe the suc- 
cess of the new experiment. Led by his sense of what 
was right, desiring above all that every department of 
the University should have the utmost scholarly develop- 
ment, he not only brought Langdell to the School and 
made him Dean, but he stood behind him in the trying 
years of change. By means of the power that a Presi- 
dent may legitimately wield in such a crisis he secured 
the appointment of the remarkable teachers whose 
memory is the glory of the later School. Thus by voice 
and vote in meeting, by support in the Corporation, 
and always by sympathy with every movement for 
strengthening the scholarship of the School, Eliot helped 
and encouraged Langdell in the work of change. To 
this work Langdell now addressed himself; and the his- 
tory of the School for the ensuing twenty-five years is 
the history of these reforms. 

The first act of the new Faculty was to establish a 
progressive curriculum. Under the old system nearly 
every subject was taught in alternate years to a class 
composed of both first and second year men. The sub- 
jects were now divided into first and second year courses, 
and no student was to be given credit in the subjects 
of the second year until he had passed the first year 
examinations. The curriculum was also modernized 
by the introduction of Torts. Another early step was 
the abolition of prizes and the ofi^ering of scholarships 
covering the tuition fee to men of high rank who were 
unable to support themselves. No scholarships have 
ever been awarded in the School in the first year, since 
the first year student cannot meet the requirement of 
proved success in legal study. Several years later a 
small loan fund became available, and from this first 
year men and others whose rank did not entitle them to 
a scholarship have from time to time received help. 

[29] 



The scholarships have always been regarded as a deferring 
of the payment of the tuition fee, and a considerable 
amount of money has been paid back to the School on 
account of scholarships received in course. 

During the first three years of the new regime a number 
of lawyers at the bar or on the bench were appointed to 
assist Langdell and the two older professors by giving 
instruction in particular courses. Three of these, 
Bradley, Gray, and Holmes, afterwards became regular 
professors. The other lecturers were Edmund Hatch 
Bennett, afterwards the first Dean of the Boston Law 
School; Nicholas St. John Green; John Lathrop, upon 
Shipping and Admiralty; Benjamin Robbins Curtis, 
late Judge of the Supreme Court of the United States, 
upon the Jurisdiction and the Practice of the United 
States Courts; and Benjamin Franklin Thomas, upon 
Wills. 

In 1872-73 John Himes Arnold began his long service 
in the Law School, which continued for forty-one years, 
until his resignation upon September i, 191 3. Chapter 
HI of this book describes his great work in the de- 
velopment of the library. 

The next year, 1873-74, marks the appointment of 
two of the teachers whose services to the School were a 
large factor in its success. James Barr Ames was ap- 
pointed Assistant Professor of Law June 2, 1873, and 
James Bradley Thayer became Royall Professor of Law 
on December 8, 1873. 

The appointment of Ames created even more surprise 
than that of Langdell. He was a recent graduate of 
the School, without experience in practice, but he had 
won considerable success as a teacher in Harvard College. 
President Eliot, in explanation of the choice, said that 
it would not be surprising if young teachers could do a 
portion of the work of instruction better than older men. 
The Corporation and the Board of Overseers gave their 

[3°] 



consent with reluctance, but the success of the young 
man then in question abundantly justified the President's 
explanation. **What is to be the ultimate outcome of 
this courageous venture?" asked Eliot, fifteen years 
later: "In due course, and that is no long term of years, 
there will be produced in this country a body of men 
learned in the law who have never been on the bench or 
at the bar, but who nevertheless hold positions of great 
weight and influence as teachers of law, as expounders, 
systematizers, and historians. This, I venture to predict, 
is one of the most far-reaching changes in the organiza- 
tion of the profession that has ever been made in our 
country." 

In 1875 the system of the last five years of employing 
lecturers who were in practice at the bar was definitely 
abandoned. Experience seemed to show that temporary 
appointees who were practitioners did not make the best 
teachers of law, and that a man who could teach law well 
as a lecturer could teach it far better as a permanent 
professor. Many qualities which lead to success at the 
bar are of little value to the teacher; on the other hand, 
devotion to teaching as a life work is essential to the best 
work in teaching. The immediate result of this deter- 
mination was the addition of a fourth full professorship 
of law, the Story. 

To this was appointed John Chipman Gray. Gray's 
connection with the School as a teacher was the longest 
in its history. More than forty-three years elapsed from 
his appointment as Lecturer on Law, on December 24, 
1869, to his resignation on February i, 191 3, and his 
continuous service was over forty-one years. 

In 1874 the Faculty had made further provision for 
the homogeneous character of the student body by 
requiring that the law student be nineteen years of age 
on admission. As early as 1875 the teachers announced 
their opinion that a college training was a desirable pre- 

C31] 



requisite to professional training in law. The Faculty 
voted with the approval of the Corporation that "the 
course of instruction in the Law School is designed for 
persons who have received a college education"; but 
that "for the present, young men who are not bachelors 
of arts will also be admitted to the School as candidates 
for the degree upon passing satisfactory examination." 
This action of the Faculty and Corporation was severely 
attacked in the Board of Overseers, and a long discussion 
ensued, but the opposition resulted in no action, and 
the matter was finally dropped. The admission exami- 
nation of candidates for degrees who were not graduates 
of colleges remained in force so long as persons not 
college graduates were admissible. 

In 1876 the Faculty voted to lengthen the course of 
study for the degree to three years. As in the case of 
other of Langdell's reforms the Faculty here willingly 
took a step which it knew was beyond its power imme- 
diately to enforce to the full extent. The three years' 
course was adopted, but it was also provided that persons 
might remain in the School for two years and then receive 
the degree upon passing the examinations at the end of 
the third year without attendance at the classes of that 
year. During the same year and thenceforth the position 
of the Law School as a real institution of learning, with a 
degree that stood for definite achievement, was recognized 
by the invitation to a person in its graduating class to 
appear upon the Commencement platform. 

In April, 1876, Professor Emory Washburn resigned. 
While he had been loyal to the new regime, and con- 
curred willingly in every action that tended to raise 
the standard of the School, he was too old comfortably 
to accept and employ the new methods. A man in his 
position with a less amiable and enthusiastic nature 
might very seriously have hampered the work of reform ; 
and it is to his lasting credit that instead of hindering 

C32] 



he helped. Progressive as any person of his age and 
traditions could be, it is nevertheless not surprising that 
he was unable fully to fit into the new order of things; 
and his resignation while regretted was not a matter for 
surprise. The high appreciation of his work which was 
expressed by the President and Corporation, and by the 
Visiting Committee of the Overseers, was no mere form. 
His death a few months after his retirement was deeply 
mourned by every professor and student in the School. 

Washburn was succeeded in the Bussey Professorship 
by another successful lecturer in the School, Charles S. 
Bradley, of Providence, a former student and a quick 
and fertile lawyer, recently Chief Justice of Rhode Island. 
After three years, however. Judge Bradley returned to 
practice, which he found was more congenial than teach- 
ing. Meanwhile Ames had resigned his position as assist- 
ant professor, with the expressed intention of entering 
practice. His success as a teacher, however, had been 
so great and his loss would have been so detrimental to 
the School that the Corporation at once elected him 
to a full professorship. This election, offering him a per- 
manent teaching career, was accepted; and upon the 
resignation of Bradley he was appointed to the vacant 
Bussey Professorship. 

From this time for more than a quarter of a century 
the four great teachers — Langdell, Thayer, Gray, and 
Ames — carried on an enthusiastic and increasingly 
successful School. 

To thousands of their students this was the high-water 
mark of the School's history, but on such a question 
there will always be a split of authority. Not long ago 
several members of the class of 1896 met and spoke of 
their time as the golden age of the Law School, referring 
with appreciation to Langdell, Ames, Gray, Smith, and 
Thayer, as well as others. The father of one of the men, 
who had himself been a member of the class of 1863, 

C33] 



happened to be present. He said, "Young men, you 
doubtless went to a very ifine law school taught by a 
competent Faculty; had you a man who wrote on real 
property with the authority of Emory Washburn, or on all 
phases of business law with the distinction of Theophilus 
Parsons, and had you as lucid a teacher as Joel Parker? 
And yet I will not myself claim to have attended the law 
school in its golden age, because when I was there there 
were many who still remembered Joseph Story as a 
teacher of law, and who insisted that the most flourishing 
period of the School had been in his day." To others 
the deanship of Thayer is so glorious to recall that it 
seems impossible that any earlier time could have been 
more wonderful. For each of us indeed the days he 
spent at Harvard Law School are a golden age. 

Langdell's skill as administrator — a skill which remade 
the School in every important particular — is over- 
shadowed and almost forgotten by reason of his services 
to legal education in the invention of the new method of 
study and teaching, which bears his name. This he 
appears to have worked out while he was a student in 
the School; and with the opening of the first year of his 
service as professor, in the fall of 1870, he put it into 
operation. 

*'The day came for its first trial. The class gathered 
in the old amphitheater of Dane Hall — the one lecture 
room of the School — and opened their strange new 
pamphlets, reports bereft of their only useful part, the 
head-notes! The lecturer opened his. 

Mr. Fox, will you state the facts in the case of 
Payne v. Cave.?' 

Mr. Fox did his best with the facts of the case. 

'Mr. Rawle, will you give the plaintiff's argument.?' 

Mr. Rawle gave what he could of the plaintiff's 
argument. 

Mr. Adams, do you agree with that.?' 

C34] 



(( i 



"And the case-system of teaching law had begun. . . . 

"Consider the man's courage. . . . Langdell was 
experimenting in darkness absolute save for his own 
mental illumination. He had no prestige, no assistants, 
no precedents, the slenderest of apparatus, and for the 
most part an uncompromising corpus vile. He was the 
David facing a complacent Goliath of unshaken legal 
tradition, reinforced by social and literary prejudice. 
His attempts were met with the open hostility, if not of 
the other instructors, certainly of the bulk of the students. 
His first lectures were followed by impromptu indig- 
nation meetings. — 'What do we care whether Myers 
agrees with the case, or what Fessenden thinks of the 
dissenting opinion.? What we want to know is: "What's 
the law.?'"" 

A controversy at once sprang up as the efficacy of this 
method of instruction. To most of the students, as 
well as to Langdell's colleagues, it was abomination. 
The students cut his lectures; only a few remained. 
But these few were the seed of the new School. They 
included several men who afterwards attained national 
reputation: James Barr Ames, his greatest pupil and suc- 
cessor, Franklin G. Fessenden, member of the Superior 
Court of Massachusetts, Austen G. Fox, a leader of the 
New York bar, Edward Q. Keasbey, of New Jersey, 
James J. Myers, speaker of the Massachusetts House of 
Representatives and one of the leaders of the Boston 
bar, and Francis Rawle of Philadelphia, a president of 
the American Bar Association. Working out his cases 
with these enthusiastic young men, patiently and thor- 
oughly as he always worked, Langdell did nothing to 
force upon others the acceptance of his system. In a 
few years Ames was appointed to the Faculty, and 
brought youth, fire, virility, into the contest; but for 
many years the two were alone in their use of the new 
method. It was ten years before others acceded to it. 

[35] 



Finally, all of Langdell's colleagues adopted his inven- 
tion, and Thayer and Gray became its chief public de- 
fenders. Keener carried it to Columbia, Wambaugh to 
Iowa, Wigmore to Northwestern ; the number of students 
at Harvard greatly increased; distinguished English 
lawyers approved it ; the students trained under it gained 
notable success at the bar. Long before Langdell's 
retirement as Dean the case for his system was won. 

But though Langdell's system was eventually accepted 
by all his colleagues, their methods of using it were entirely 
different. Langdell himself was not a born teacher. The 
course of his thought was too deliberate and ponderous; 
he relied too entirely upon intellectual process to reach 
all classes of students. He possessed in high development 
the historical sense and the logical faculty. His collec- 
tion of cases included all important cases upon each topic, 
beginning with Tudor times; and in class he went care- 
fully through each case, taking up every point presented 
and extracting every possible legal principle from the 
case. His method was that of Coke ; and in these modern 
days it was criticised as slow and as ill-arranged. He 
certainly covered little ground. As he grew older, his 
eyesight failed, and he was forced to rely entirely on 
lectures for conveying instruction; and many students 
found even greater difficulty in making much of his 
courses. But for the better men his was a wonderful 
training in close legal thought, in precision and breadth 
of statement, in remorseless logic. 

Those whose ideas of the **case system" of instruc- 
tion were self-constructed thought this a departure from 
the system. As a matter of fact, any method of teach- 
ing is entirely consistent with that system; for, as James 
Thayer has shown, it is, more exactly, a system of study 
rather than of teaching. Its chief thesis is that the stu- 
dent in preparing for a lecture should study cases, rather 
than the conclusions which others have derived from 

C36] 



the cases; petere fontes is its motto. Having prepared 
himself for a lecture by such study, the student may 
then, consistently with the application of the system, 
receive help from the teacher in any way in which the 
teacher is able to give it. 

That development of the Langdell system which was 
finally adopted as the best method was the invention 
of Ames; or, perhaps more accurately, he perfected it 
and adapted it to use in teaching law. Ames as a teacher 
had the good qualities which Langdell lacked. His 
mind was broadly trained, full, and ready, and moved 
rapidly enough to keep the interest of the class alive. 
His logical sense was under control, and could bend to 
political or social necessity; he was a thoroughly trained 
historian, but he used his historical knowledge only as 
a means of judging the law of the present and the future. 
He was intensely alive to the problems of the day, 
concerned for justice rather than for precedent, though 
insistent on reaching his results by legal principles; force- 
ful in presentation, patient in argument, convincing in 
his conclusions. The Socratic method of teaching, with 
him, was neither a club nor a rapier. Like Socrates 
himself, he desired to open the eyes of his students and 
let them discover the truth for themselves. He would 
rather state a problem than a solution. His favorite 
device in teaching was to put one good student against 
another, that the class might learn the law from their 
argument. 

Almost without exception, Ames' pupils enthusias- 
tically admired his method. It was a stimulus to the 
slow pupils and a delight to the more acute. But it 
was as a man that he won the affections of younger men. 
He was a born leader; and his high ideals of professional 
honor and of justice influenced profoundly, through his 
pupils, the whole American bar. 

James Bradley Thayer was essentially a scholar. 

[37] 



Some one has said that he might as well have been a 
professor of EngHsh or of the Classics as of law; and 
indeed, anything he undertook must have been done 
with the same finished scholarship which he showed in 
law. Langdell was a lawyer turned scholar; Thayer 
a scholar turned lawyer. As a teacher, he now and then 
fell a little short, by reason of the very excellences of his 
mind. He saw too keenly considerations on both sides 
of a question to teach dogmatically, and the thorough- 
ness of his investigations led him to suspend judgment. 
The average man was sometimes bewildered by his 
discriminations and cautious hesitation. In his earlier 
days he would give out and expect his pupils to read a 
chapter in a treatise, and then, assuming that the author's 
views had been mastered, he would distinguish, or doubt, 
or deny — deliver " a commentary on an undelivered 
lecture," as was wittily said. Later he prepared case 
books, and conformed more to the methods of his col- 
leagues, but always he was the delight of the better men. 
His fine mind, his delicious shades of thought, his gentle 
strength, his elegant scholarship, were the admiration 
and the despair of the pupils he cared most to influence. 
And while not every pupil understood him, all loved him. 
John Chipman Gray was a '*rock of trust," in Ezra 
Thayer's inspired phrase. He was a successful teacher, 
first of all because his words carried conviction. He 
was a clear and elegant lecturer, and in his early years 
he lectured exclusively. He gave out four or five cases, 
or other authorities, each day, to be read by his class; 
but he seldom considered them at length. The first 
five or ten minutes of each lecture were devoted to a 
masterly summary of the preceding lecture, the remain- 
der of the time to the new matter. His lectures were in 
perfect form, clear, full, convincing; each was a liter- 
ary masterpiece. Later, after he had adopted the case 
system, he had less opportunity to display his distinctive 

[38] 



skill as a lecturer, but remained a remarkable and suc- 
cessful teacher under the new method. 

No further appointment was made to the Faculty until 
the year 1879-80, when Henry Rowland of the Boston 
bar was appointed Instructor in Torts, an office which 
he held during four successive years. In 1882-83 Pro- 
fessor Thayer's sabbatical year of absence made four 
additional instructors necessary: for Evidence, Louis 
Dembitz Brandeis, now Associate Justice of the Supreme 
Court of the United States; for Criminal Law, Franklin 
Goodridge Fessenden, later Justice of the Superior Court 
of Massachusetts ; for Constitutional Law, Brooks Adams, 
now Professor in the Law School of Boston University; 
and for Sales, Charles Maynard Barnes, of the Boston 
bar. 

The test of the new regime came in the years between 
1876 and 1886. The country was passing through a 
period of financial stress, and more young men than 
usual had to earn a living instead of devoting time to 
study. As Langdell's reforms all went into effect they 
cut down the number of students, both by keeping out 
unqualified persons and also by repelling many who 
feared to face the higher standard. The competition of 
the Boston University Law School seriously lessened the 
number of graduates of Harvard College entering the 
Law School. This decrease in students made the finan- 
cial position of the School precarious. The first light 
came in 1882 with the endowment of a new professorship, 
afterwards named for its donor, William F. Weld. To 
this chair was appointed Oliver Wendell Holmes, Jr., 
now Associate Justice of the Supreme Court of the 
United States. Though his actual service lasted only 
a few months, his enthusiastic scholarship and magnetic 
personal qualities were of a distinct help to the School, 
and in subsequent years his loyal support has never failed. 
In the same year, 1882, a considerable amount of money 

C39] 



was raised as a book fund, and Austin Hall was presented 
to the School. These three gifts, coming at a time of 
depression, served to fix the financial condition of the 
School on a firm basis. The courage of the Faculty and 
their belief in the final triumph of their progressive 
measures had never wavered, and the rapid growth of 
the School in numbers and influence, which began with 
the removal to the new building, was never checked. 

This new building had long been necessary. The 
quarters in Dane Hall had been almost unbearably over- 
crowded, but the School had no resources upon which to 
draw. The old building had been unaltered since its 
enlargement in 1845, except that in 1871 it had been 
moved toward Harvard Square in order to make room 
for Matthews Hall, and in the process had lost its Ionic 
colonnade. President Eliot had often mentioned the 
need of new quarters to the Corporation, and now they 
were able to supply this need through the desire of Mr. 
Edward Austin, a merchant of Boston, to erect a memorial 
to his brother, Samuel. Mr. Austin offered to give 
^100,000 for the purpose, and H. H. Richardson, then 
the leading American architect, was asked to make de- 
signs. When the plans were submitted to contractors 
it was found that the cost would be ^135,000, but Mr. 
Austin increased his gift to that amount ; and in fact the 
actual cost greatly exceeded this estimate. The building 
when completed proved to be one of the most beautiful 
of its time, and well adapted, upon the whole, for a 
school ot four hundred students and a library of forty 
thousand volumes. The activities of the School at once 
expanded, and there can be no doubt that better work 
was done in the adequate new quarters than could have 
been accomplished in old Dane Hall. 

Upon Justice Holmes' resignation in 1883, William A. 
Keener was appointed Assistant Professor, and subse- 
quently Story Professor. Keener was a teaching genius. 

[40] 



Not a scholar, nor well loved like his colleagues, he had 
a most remarkable ability to instruct by the Socratic 
method. His method differed greatly from Ames'. Ames 
led; he drove. Ames aimed to persuade; Keener to con- 
vince even against the will. His favorite form of argu- 
ment was the reductio ad ahsurdum; and he had wonderful 
skill in detecting imperfect reasoning. 

In the year 1886-87 the Faculty increased the amount 
of instruction, and for this purpose appointed three in- 
structors: Henry Warren Torrey, who was for many 
years McLain Professor of History in Harvard College, 
delivered a course of lectures on International Law during 
this academic year; Joseph Bangs Warner, of the Boston 
bar, had charge of the course on Constitutional Law; 
William Schofield, later Justice of the Superior Court 
of Massachusetts, continued to teach Torts for the next 
four years. 

1886-87 may be fixed as the year in which the increas- 
ing success of the School became marked. In the autumn 
of 1886 was celebrated the 250th anniversary of the found- 
ing of Harvard University. At the same time a number 
of graduates of the Law School conceived and carried out 
the plan of establishing the Harvard Law School Asso- 
ciation, to which all former pupils of the School should be 
eligible, and which should undertake the work of increas- 
ing the success and usefulness of the School. A dinner 
was held, at which the speakers included Langdell, Eliot, 
James C. Carter, Judge Hoar, and Judge Sewall, a mem- 
ber of the first class in the School. A public address was 
delivered by Judge Oliver Wendell Holmes. Both the 
oration and the speeches were in the highest degree bril- 
liant and enthusiastic; and this public commendation of 
the School and its work was of great value in attracting 
students. The Association became very useful in assist- 
ing graduates of the School to enter practice in leading 
law offices. It stimulated the loyalty of former pupils, 

[41] 



and led to an immediate increase in numbers and national 
influence. In Langdell's words, *'The School awakened 
to the fact that its old students are its natural friends and 
supporters." 

In this same year the students in the School founded 
the Harvard Law Review, a legal periodical of scholarly 
aims, which has since that time occupied high rank 
and has been frequently quoted by courts of last resort. 
Among the Board of Editors of the first volume were 
Julian W. Mack and Edward T. Sanford, afterwards 
judges of the Federal courts, and Joseph H. Beale, 
Homer H. Johnson, Blewett Lee, John H. Wigmore, and 
Samuel Williston, later professors at Harvard or other 
law schools. The new periodical received the hearty sup- 
port of the Faculty, and particularly of Professor Ames, 
who contributed the opening article, gave his constant 
supervision and advice, and became chairman of its 
Board of Trustees when such a Board was made necessary 
by its increasing prosperity. 

For three years, beginning with 1888-89, Herman 
White Chaplin was Lecturer on Criminal Law. He was 
a member of the Boston bar and author of a volume of 
short stories of singular charm. 

On March 10, 1890, Professor Keener resigned his posi- 
tion to accept a professorship in the Columbia Law School. 
From the point of view of Harvard Law School this 
was a matter for deep regret; for Keener's ability as a 
teacher was of the highest character. The students vainly 
endeavored, through the Law Review, and by a general 
petition, to keep him at the School. From the point of 
view of legal education in general, however, Keener's ac- 
ceptance of a professorship and subsequently the deanship 
at Columbia Law School is an event of striking impor- 
tance. His introduction at Columbia of the Langdell 
system of instruction caused the secession of some of 
the older teachers and the formation of a private law 

C42] 



school for the pecuniary gain of the teachers. The re- 
sulting comparison of a school for private gain on the 
one side, and a school striving for higher scholarship on 
the other, set sharply before the American bar the alter- 
natives of mere bread and butter education and of legal 
scholarship. The importance and the geographical situ- 
ation of the Columbia Law School brought this question 
into national prominence more than ever, and Keener's 
work there went very far toward bringing the Langdell 
system into national use. 

The vacancy in the Story Professorship was filled by 
the appointment of Jeremiah Smith, a graduate of the 
Law School in 1861, and formerly a member of the Su- 
preme Court of New Hampshire, who continued to hold 
this chair until his resignation in 1910. At the same time 
Samuel Williston, a recent graduate, who had been prac- 
ticing in Boston, became Assistant Professor. He was 
made Professor of Law in 1895, and an incumbent of the 
Weld Professorship in 1903. 

In the year 1892-93 the division of the first year class 
into two sections made two further additions to the Faculty 
desirable. Eugene Wambaugh, a graduate of the School 
in 1880, who had been teaching in the University of Iowa, 
and had just formed as Dean a new law school at Western 
Reserve University, was appointed Professor of Law. In 
1903 he became the first Langdell Professor. Joseph 
Henry Beale, of the Class of 1887, who had given a few 
lectures on Damages in the year 1890-91, and been 
appointed Lecturer on Criminal Law and Carriers the 
following year, became Assistant Professor of Law in 
1892. He was made Professor in 1897, and after occupy- 
ing the Bussey and Carter chairs, was appointed Royall 
Professor in 191 3. 

About this time the School began to give courses in the 
practice of Massachusetts and New York for the benefit 
of students intending to settle in those states. Frank 

[433 



Brewster, of the Boston bar, became the first instructor 
in the Peculiarities in Massachusetts Law and Practice 
in the year 1890-91, and continued to hold the office for 
five years. The first lecturer on New York Practice, 
1892-93, was James Byrne, now one of the leaders of 
the New York bar. The press of business prevented his 
lecturing in the following year, although he was appointed 
to do so, and in his place was chosen Ernest Lee Conant, 
then instructor in the Common Law in Harvard College. 
Another innovation at this period was a course in Patent 
Law, which was taught by Frederick Perry Fish, a lead- 
ing specialist in that subject. 

The result of the division of the first year class into 
sections was not altogether satisfactory. Although the 
sections changed instructors at the end of each half year, 
so that every man sat under both teachers, comparisons 
were inevitably made by the students and one of the in- 
structors was apt to suffer; and since attendance at reci- 
tations has always been voluntary at the School, some of 
the students showed their preference by attending the 
classes of the favorite instructor exclusively. Further- 
more, a class which was not divided proved quite teach- 
able. Therefore, the division of the first year was 
temporarily abandoned. 

An unexpected consequence of this event was the great 
increase in the amount of elective courses. There are 
always those who deprecate an elective system in a law 
school on the ground that it encourages students to study 
comparatively useless specialties instead of the great 
staple courses. The answer to this objection always given 
at Harvard is that no one can learn at a law school the 
entire content of the law; that all a school can accomplish 
is to train the student in principles and methods, teach 
him how to look up a new case, and leave him to do so ; and 
that many subjects of law offer a good medium for such 
training. Since the beginning every possible encourage- 

[44] 



merit has been given to students to select their own 
studies; Langdell Hmited this wide choice by making the 
course a required one for the first year, but this was be- 
cause the courses required were preliminary, rather than 
because they were indispensable on account of their 
subject-matter. 

The extent of election, however, was limited by the 
smallness of the Faculty. As late as 1890 it was possible 
for a student to take every course in the School, though 
three or four more courses were given than he could be 
examined in; his election was therefore confined within 
narrow limits. In 1886 the students petitioned for 
more courses; and in response the Faculty increased the 
number as rapidly as possible. With the abandonment 
of the division of classes, in 1893, a considerable addi- 
tional amount of elective work was offered, and from 
that time there has been a large amount of real election 
in the second and third years of the curriculum. 

The rapidly increasing resort to the School brought 
for the first time before the Faculty the problem of cutting 
down the numbers. It was obviously desirable that this 
cut should come in the more poorly prepared rather than 
the better prepared candidates. In 1891, therefore, the 
Faculty voted that at the end of the next year no one 
who was not a college graduate, whether candidate for 
the degree or not, should be admitted to the School with- 
out passing an examination. The next year a still higher 
standard was required by providing that no one who 
failed to pass an examination in at least three subjects 
would be allowed to continue in the School. The result 
of this legislation was to exclude from the School certain 
persons who desired to remain in Cambridge connected 
with the University, but without any wish of completing 
a curriculum or taking a degree. In 1893 the School 
took the final step by which only college graduates were 
eligible for the degree. The vote was passed by the 

[45] 



Faculty, unanimously and without hesitation, and was 
approved by the Corporation. 

As the School grew larger and Langdell became blinder, 
it became increasingly difficult for him to carry on the 
work of the deanship; and in 1895 he resigned the office 
after twenty-five years of service. The statute had long 
since been changed, so that the appointment of his suc- 
cessor was made by the Corporation; but the Faculty 
were consulted and unanimously approved the choice 
of Ames. Probably either of his seniors would have been 
appointed if he had desired the office, but both joined in 
urging the appointment of the younger man. 

Langdell's administrative work may be thus sum- 
marized. He found a School with no educational require- 
ment for admission ; in the last year of his deanship the 
requirement of a college degree was adopted. There had 
been no regular curriculum; a few subjects were taught 
yearly, and a larger number were given in alternate years. 
At the end of his term a complete curriculum, arranged 
progressively for three years, was given each year; ten 
hours of prescribed studies in the first year, thirty-eight 
hours of elective study in the second and third years 
(from which eighteen or twenty hours had to be chosen), 
and two extra courses. The course of study for the de- 
gree, if such it could be called, at the beginning of the 
period was a year and a half of residence, with no require- 
ment of work to be done and no examinations; at the 
end three years' residence was required, and the success- 
ful passing of examinations on twenty-eight or thirty 
year-hours of work. He found a school of 136 students; 
he left one of 413. He found a library of less than ten 
thousand books; he left one of thirty-four thousand. 
He found a Faculty of three professors ; at the end of his 
term of office there were eight members of the Faculty 
and two instructors. He came to a school with an en- 
dowment of less than thirty-seven thousand dollars, 

C46] 



struggling under the shadow of a deficit; he left office 
with funds of three hundred and sixty thousand dollars 
and a surplus of twenty-five thousand dollars. The 
School at his coming was housed in the small brick struc- 
ture which had been its home since the time of Story; 
during his term of office it moved into a spacious and 
beautiful stone building, a worthy dwelling-place for a 
great school. Such work is given to few men to do. But 
in Langdell's case, as has been said, it was overshadowed 
by the even more striking success of his method of study, 
and the consequent change in the attitude of students 
toward their profession. Learned lawyers there have 
always been; scientific lawyers before Langdell but a 
few. It is hardly too much to say of him that he found 
the profession of law a trade, and left it a science. 

Coincidently with the beginning of Ames' deanship, 
the School became a graduate school of law; that is, 
the only persons admitted as regular students The Dean- 
were either graduates of approved colleges ^^^ °^ ^°^®^ 
or "persons qualified to enter the senior class of Harvard 
College." A list of approved colleges was published in 
the catalogue, with the proviso, however, that it was *'not 
intended to be exhaustive, and will doubtless be enlarged 
from time to time." 

It is hardly possible to-day, when the law school which 
is open only to college graduates is common, and the pro- 
fession has accepted a college education as a desirable 
prerequisite for a student of law, to think back and 
imagine the boldness of the step taken by the Faculty in 
making the new requirement. It is true that a large 
percentage of college graduates had always been in attend- 
ance; and at the time the rule was adopted over two- 
thirds of the students were college graduates, besides a 
considerable number "qualified to enter the senior class 
of Harvard College." But the Faculty could not know 

[47] 



that the number of college graduates resorting to the 
School would be much increased. They hoped that 
eventually the School would not lose; but they faced an 
almost certain falling off in numbers by one-third. When 
one remembers that the School was dependent upon the 
receipt of tuition fees even for the payment of salaries, 
the boldness of the step is evident. 

The result, however, falsified all expectation. A school 
made up almost altogether of college graduates proved 
exceedingly attractive to college graduates; they pre- 
ferred it greatly to a school where they were taught 
together with a considerable proportion of less well- 
trained young men. The change did not even check the 
growth of the School. There was, to be sure, a slight 
falling-off for a year; but this was due to the artificial 
increase in numbers for the year preceding the change, 
caused by non-graduates who took advantage of their 
last opportunity to enter as regular students. The ex- 
ample of Harvard was soon followed by many others of the 
better schools. But Harvard had all the advantage of 
priority. College graduates having begun to resort to 
the school where they would be associated with their own 
kind, this attraction has continued and increased; and it 
may fairly be said that the action of the Faculty in 1893, 
taken under the leadership of Langdell and Ames, has 
made possible the School of the present and the future. 

This serious increase in the requirements for admission 
was not carried out without considerable opposition, 
especially from other schools and from lawyers in all 
parts of the country. The example of Abraham Lincoln, 
who without any schooling whatever had made himself 
a successful lawyer, has served to fortify ten thousand 
arguments against the step. Harvard was at first at- 
tacked not merely as exclusive, but also as asserting the 
obvious untruth that only college graduates were fitted 
for the practice of law. Such an assertion was very far 

C48] 



from the minds of the Faculty. There were a hundred 
schools of law in the country where persons who had not 
received a college education could be trained. It was 
believed that Harvard could do better work by becoming 
an exceptional school in which only college graduates 
should be trained, leaving to the other schools the task 
in which they were already engaged, of training in one 
class men of various degrees of education. It was the 
belief of the Harvard Faculty, a belief which experience 
has fully justified, that better work could be done under 
the Langdell system of instruction by teaching a homo- 
geneous body of men, that is, men whose mental training 
was similar, and whose intellectual experience fitted them 
to apprehend instruction adapted for their degree of 
education. The increasing numbers taught at Harvard 
have brought with them great pedagogical difficulty; it 
would have been impossible to carry on such large classes 
if the students had not already such an amount of edu- 
cation as made them unusually responsive to new ideas. 

Nevertheless, the Lincoln legend affected the regulations 
of 1893. In order that the non-graduate should not be 
entirely excluded from membership in the School, provi- 
sion was made for admitting as special students persons 
of mature age whose natural ability and experience in 
the world might be supposed to compensate for the lack 
of academic training. The Faculty has always kept in 
mind the fact that some of the ablest graduates in the 
history of the School never received an academic degree. 
It was provided that special students who obtained a 
grade of B might receive the degree. This action has 
been greatly misunderstood by those who have not known 
the history of it. The theory of the Faculty was that 
the degree in law should be a guarantee of a certain 
quality of mind in the recipient of it. It was intended 
to mean not merely that the holder of it had a required 
modicum of legal knowledge, but that he had such ability 

C49] 



to enter into practice of a learned and exacting profession 
as three years' study at the School by a person already 
liberally trained might be expected to give. If the degree 
were to mean that, the special student who received it 
must show in some way that his natural ability and expe- 
rience in life were such as to make up for the lack of a set 
college education. The Faculty believed that a special 
student who received a grade of B in competition with col- 
lege graduates had sufficiently proved himself to have such 
ability and experience. No mere test of a written exami- 
nation can certify to the acquirements of those who barely 
succeed in passing it; for such men the examination test 
must be supplemented by such previous educational his- 
tory as will form an additional guarantee of quality. The 
special students, therefore, who on the examination test 
did not show remarkable excellence, could not be guaran- 
teed as possessing the desired quality. Those, however, 
who placed themselves in the upper quarter of the class 
were felt to have proved themselves fit for the degree. 
To many persons it has seemed hard that special students 
who, with all their disadvantages, succeeded in passing 
their examinations should not receive the degree; the 
explanation just given will at least indicate the reason of 
the Faculty in passing the rule. 

While the rule admitting special students to the degree 
was thus in its origin a slight modification of what was 
generally regarded as a very rigorous practice, the experi- 
ment on which Harvard thus entered proved so quickly 
successful and so soon became the generally accepted 
standard, that within fifteen years Harvard was re- 
proached for not really being a graduate school, because 
it offered the degree to persons not college graduates. 
And indeed the rule was one which, if administered laxly, 
might seriously have diminished the prestige of the 
School. The best answer to the criticism lies in the 
actual practice. In the fifteen years from 1 896-1910 

Cso] 



there were admitted to the School 3488 students. Of 
this number 49 or i.i percent were persons without a 
degree. Only figures like this can prove that the Faculty 
were really maintaining a graduate school. These per- 
sons did not, in fact, prove themselves to be of high 
quality. Of the 49 admitted only 9 have ever received 
the degree. The meagreness of their numbers and their 
moderate intellectual ability finally led the Faculty to 
withdraw the oflfer of a degree to special students. 

The provision for the admission of persons qualified 
to enter the senior class of Harvard College was originally 
adopted as a measure of attainment to be required of 
men who, without having received a college degree, 
claimed to be of equivalent education. As it worked 
out, however, the provision made it possible for Harvard 
seniors to enter the School without obtaining the degree; 
and a practice grew up for seniors who had almost 
completed their college requirements to obtain leave of 
absence from the College and enter the Law School, 
where they attempted to do the first year work of the 
School together with the college courses which were lacking 
for the degree in Arts. Since the discipline in the Law 
School was much freer than that in college, a considerable 
number of men of this type entered the School, though 
they had no intention of ever becoming lawyers; and 
even those who were genuine law students were greatly 
handicapped by the necessity of taking college as well 
as law school work, and the natural diversion of their 
energies to the social activities of seniors in college. 
Statistics compiled after several years' experience of the 
working of the rule proved that Harvard College seniors, 
so admitted, were not doing well in the Law School; and 
in 1900 the privilege was withdrawn. Since that time no 
persons who have not already received a college degree 
can be admitted as regular students unless they have com- 
pleted all the required college work, so that only the mere 

[51] 



lapse of time stands between the student and the 
degree. 

The publication of the list of approved colleges proved 
a continual source of friction with colleges which did not 
find a place on the list, and sometimes became an undue 
cause for boasting by those which had been admitted to 
it. The Faculty came to feel that since they were not 
in a position to stand as public censors of college educa- 
tion, the publication of the list of colleges approved by 
them was unwise, and it was accordingly discontinued. 

The number of temporary teaching appointments dur- 
ing the deanship of Ames was far greater than for any 
previous period, partly because of the increasing enrich- 
ment of the curriculum. Valuable work was performed 
by the following men, whose professional careers deserve 
fuller mention in another portion of this book, — George 
Rublee and Henry Walton Swift, who took some of 
Professor Williston's courses during his illness; Francis 
Cleaveland Huntington, Frank Beverly Williams, Harvey 
Humphrey Baker, Charles Benjamin Barnes, Arthur 
Charles Rounds, Robert Gray Dodge, James Jackson 
Storrow, Harry Augustus Bigelow, William Rodman 
Peabody, Joseph Lewis Stackpole, Jr., Rufus William 
Sprague, Frederick Green, Wallace Brett Donham, 
Samuel Hudson HoUis, Clarence Harmon Olson, Jeremiah 
Smith, Jr., Allen Reuben Campbell, Philip Lee Miller, 
Sanford Henry Eisner Freund, Arthur Atwood Ballantine, 
Lincoln Frederick Schaub, and John Gorham Palfrey. 

Two other instructors afterwards became more closely 
connected with the School. Ezra Ripley Thayer was 
appointed Instructor on Massachusetts Practice in 1897- 
98, when the plan was adopted of offering the two Prac- 
tice courses in alternate years, and taught four times, 
until press of business compelled him to decline further 
appointment. Edward Brinley Adams was Lecturer 
on Property in 1902-03. 

. CS2] 



Charles Frederick Dutch began a long and useful service 
as instructor in the year 1906. During the next ten years 
he taught at various times Admiralty, Equity and Property. 
Mr. Dutch's work for the Law School in hours taken from 
a busy practice deserves the gratitude of every one inter- 
ested in the School, and his success in conducting difficult 
courses in emergencies is worthy of the highest praise. 

In the year 1902-03 lectures were given for the first time 
on Mining and Irrigation. The lecturer in that year 
and again in 1905-06 was Charles James Hughes, Jr., 
the chief mining lawyer in Colorado. The course on 
Mining Law was subsequently conducted by Bancroft 
Gherardi Davis of the Boston bar. 

Several distinguished foreigners taught at the School 
during this period. In 1898-99 Alfred Venn Dicey, 
Vinerian Professor at Oxford University, delivered lec- 
tures afterwards published under the title "Law and 
Opinion in the Nineteenth Century." In 1906-07 Paul 
Vinogradoff, also Vinerian Professor of Law at Oxford, 
gave a course on Comparative Ancient Law. Walter 
Neitzel, a German judge, who was studying American 
law in Cambridge, conducted an interesting series of lec- 
tures in 1908 on the German Civil Code. 

As the School grew, several permanent professors were 
added to the group of men who had surrounded Langdell. 
In the year 1878 George Bemis of the class of 1839 had 
left a considerable sum of money to the Law School 
for a chair of Public and International Law. This be- 
quest was subject to a life estate which fell in about 
1895. The first appointment to the Bemis Professorship 
was that of Edward Henry Strobel in 1898. In this 
same year the Faculty again decided to try the experi- 
ment of dividing the first year men, but only in one 
course. Criminal Law was to be taught in several sec- 
tions, so that the students might have the advantage 
of a small class at the beginning of their school work. 

C53] 



In order to help carry out this division Jens Iverson 
Westengard, who had just graduated, was made in- 
structor in Criminal Law for 1898-99, and next year As- 
sistant Professor of Law. In 1906 Professor Strobel 
became General Adviser to the King of Siam and de- 
parted for the East, taking Professor Westengard with him. 
When Mr. Strobel died in 1908, Mr. Westengard suc- 
ceeded him as Adviser, and remained in Siam until 191 5. 
He then returned to the Law School to take the Bemis 
Professorship, which had been vacant since Strobel's res- 
ignation. Joseph Doddridge Brannan, who had graduated 
from the School in 1872 and practiced and taught in Cin- 
cinnati, became Professor of Law in 1898. Ten years later 
he was made Bussey Professor and retired in 1916 after 
eighteen years of service. Bruce Wyman was appointed 
Lecturer on Administrative Law upon his graduation in 
1900, and three years later Assistant Professor. In 1908 
he became Professor and served until his resignation in 
1913. Edward Henry Warren, a member of the class of 
1900 in the School, was appointed Assistant Professor 
in 1904, Professor in 1908, and in 191 3 Story Professor. 
Joseph Warren, of the same class, served as Lecturer 
and Instructor from 1909 to 1913, and was then ap- 
pointed Professor of Law. 

At the time of the Spanish War the question was raised, 
for the first time in the School since an examination for 
the degree had been established, of a necessary concession 
to students engaged in military service. The Faculty 
felt that the gravity of the occasion justified a relaxation 
of their very rigid requirements as to examination, and 
they accordingly adopted regulations substantially ex- 
cusing all students who were absent on actual service 
from taking examinations held during their absence. 
During the riots in Lawrence in 191 3 a similar privilege 
was granted to several students who were called out as 
members of the Massachusetts militia. 

CS4] 



A petition for the admission of a woman to the School 
was presented in June, 1899. After a long discussion the 
Faculty voted that if the governing boards of Radcliffe 
College would admit her as a graduate student, the 
faculty would allow her to take the courses and exami- 
nations. It may be added that Langdell dissented from 
this vote. Thayer expressed the view of all the others 
when he said that he should regret the presence of a 
woman in his classes, because he feared it might affect 
the excellence of the work done; but he could not deny 
the inherent justice of the claim. The Radcliffe Col- 
lege council were ready to admit the petitioner in accord- 
ance with this vote, but the Harvard Corporation, acting 
as overseers of Radcliffe College, refused their assent. 

By 1899 the School had become so large that a Secre- 
tary was desirable. Charles F. D. Belden was appointed, 
and the position was later occupied by Frederic Louis 
Fischer and Herman Arthur Fischer. In 1909 Richard 
Ames became Secretary. Besides having charge like his 
predecessors of work connected with the entrance of 
students and their standing in the School, Mr. Ames has 
also undertaken to assist men who are graduating to 
secure positions in law offices. 

The students of the School have seldom cared to take 
a large part in athletic activities. Indeed, most of the 
students so suddenly give up the active exercise of their 
undergraduate years as to present not infrequently a 
problem of health. But persons who had been promi- 
nent on the athletic teams of their colleges before coming 
to the Law School were sometimes commandeered for 
service on the Harvard teams. The Faculty of the Law 
School regarded this as unfortunate. A professional 
school is a place for work, not for play, and the interrup- 
tion to work caused by membership on an athletic team 
was so considerable as distinctly to interfere with the 
professional progress of the student. In 1904 the Faculty 

[55] 



requested the "Dean to communicate to the Committee 
on the Regulation of Athletic Sports the opinion of the 
Faculty that it is desirable to restrict the participation 
by Harvard students in intercollegiate athletic contests 
to the undergraduates of Harvard College and the Law- 
rence Scientific School." The Athletic Committee acted 
in accordance with this opinion and from that time the 
students in the School have taken no part in the regular 
contests of Harvard teams. Now and then they have 
formed football or baseball teams to play a game or 
two, and considerable enjoyment has been obtained in 
that way; but they have not been permitted to enter 
intercollegiate sports. 

When Austin Hall was occupied, in 1883, it was ex- 
pected to furnish an adequate home for the School for 
the ensuing fifty years, as Dane Hall had done for the 
previous half century. The whole past experience of 
the School justified this expectation. During the forty 
years from the death of Story to the year 1885 the maxi- 
mum attendance of students had increased but fifty; but 
in the following twenty years a sudden and unexampled 
increase in numbers took place. From 165 in 1885 the 
attendance rose, with hardly a year's check, to 765 in 
1904; a difference of 600, or 364%. The library grew 
at an almost equal rate. As early as the year 1896 altera- 
tions were made by which the accommodations of the 
School were increased. Before 1902 plans had been made 
for the enlargement of Austin Hall by adding a stack and 
professors' rooms at the north end; but the increasing cost 
of building caused the abandonment of the plans. Within 
a year the necessity for larger quarters became even more 
pressing. Many schemes for enlargement of the building 
were proposed, but all had to be abandoned because of 
artistic or financial objections. The condition upon which 
Austin Hall had been given — that no building should be 
placed within sixty feet of it — made the construction of a 

[56] 



second building a difficult problem; but that course was 
finally adopted, and Langdell Hall was begun in 1905. 

No benefactor came forward to present the new build- 
ing. Fortunately the prosperity of the School had been 
so great that several hundred thousand dollars had been 
accumulated as surplus, and this was devoted to con- 
struction. Langdell Hall cost, with its furnishings, con- 
siderably more than four hundred thousand dollars. 
Financially, therefore, it caused an increased expense to 
the School of the interest on this money as well as of the 
cost of maintenance of the new building. It happened 
that the University adopted at the same time the reason- 
able policy of distributing among its departments the 
general expenses — for overhead charges, library and 
gymnasium, etc. — which had formerly been borne by 
the College alone. In consequence of these new financial 
burdens, the average annual surplus of the School, 
which had been more than thirty-eight thousand dollars 
(^38,548.53) for the period between 1900-01 and 1904-05, 
fell to less than three thousand five hundred dollars 
(^3435.47) for the period from 1907-08 to 1911-12; or, 
if allowance is made for certain extraordinary expendi- 
tures for books, seven thousand five hundred dollars. 
There was therefore a loss to the School from these causes 
of more than thirty thousand dollars a year; a serious 
matter for an institution so slightly endowed. 

In October, 1906, the Faculty began to consider the ex- 
tension of the school work by the addition of a fourth 
year of residence. For several years one or two students 
had stayed after graduation for another year's work in 
the School. The number of courses offered was greater 
than could possibly be taken by a student even in four 
years, and several subjects of a distinctly advanced na- 
ture were already offered. After three years of informal 
discussion the Faculty voted in 1909 to recommend to 
the Corporation that the degree of S.J.D. (Doctor of 

[57] 



Juridical Science) be given to a graduate of the School 
who should successfully complete one year of postgraduate 
work, and to graduates of other schools after two years 
of such work. The Corporation and the Overseers ap- 
proved the plan, but modified it by requiring only one 
year's residence for the degree whether the student 
had graduated from Harvard or elsewhere. It was pro- 
vided that the candidate for S.J.D. should have re- 
ceived the LL.B. degree with high rank, and must pass 
the examinations of the fourth year course with dis- 
tinguished excellence. 

The sudden illness and untimely death of Ames early 
in the academic year 1909-10 put an abrupt end to the 
period under examination. Judge Smith, who in 1908, 
at the unanimous and insistent request of his colleagues, 
had agreed to serve for two years longer in his pro- 
fessorship, insisted upon retiring at the end of the year. 
Gray alone remained of the group of great teachers who, 
under the leadership of Langdell, had created the prestige 
of the School. The fortunes of the School were now in 
the hands of younger men, all of them pupils of Langdell 
and his successors; and the task of supplying the place 
of such distinguished teachers as Ames and Judge Smith 
was exceedingly serious. Professor Williston, whose con- 
nection with the School had been longer than that of 
anyone except Gray and who served as Acting Dean till 
the close of the academic year, would undoubtedly have 
received the deanship, had not the condition of his health 
compelled him to decline. The Faculty and the Corpora- 
tion next turned to a distinguished member of the Boston 
bar, one of the most brilliant students in the history of 
the School, who had already made his mark there as a 
teacher of Massachusetts Practice. Ezra Ripley Thayer 
was chosen Dean, and Roscoe Pound, then at the Univer- 
sity of Chicago, was elected to fill the vacant Story 
Professorship. 

CS8] 



In the autumn of 1910 Ezra Ripley Thayer entered 
upon the duties of the deanship. During the half-year 
of interregnum the Faculty had made several xhe Deanship 
appointments to teaching positions. Upon ^^ Thayer 
Dean Ames' illness in 1909, Austin Wakeman Scott, a 
graduate of that year, was called from practice in New 
York to be Instructor in Pleading and Equity. The next 
year he became Assistant Professor and in 1914 Professor 
of Law. Roland Gray was appointed Lecturer on Prop- 
erty for 1910-11 and twice reappointed. 

New problems awaited solution. The establishment 
of a graduate course and of a graduate degree of Doc- 
tor of Juridical Science put upon the Faculty the 
task of developing instruction in a new line of legal 
thought. The leadership of the School up to this time 
had been in methods of undergraduate instruction and 
in the training of youth for service at the bar; it soon 
appeared that the School was to be pioneer in another 
field, that is, in the broad and theoretical training of 
teachers in the science of the law. It was not expected 
that many students would come to the School to obtain 
the higher degree; nor was it foreseen to how great an 
extent these few students would consist of experienced 
teachers of law desirous of keeping abreast with the latest 
developments of legal science. As an essential part of 
their work these men have been employed in the inves- 
tigation of current problems of law and administration. 
The remarkable library of the School has thus been made 
of direct use to the development of learning. And 
during Thayer's administration the distinction already 
possessed by the library was increased by the acquisi- 
tion of several valuable collections of books on special 
subjects. A full description of these accessions will be 
found in another chapter. It is, however, proper to 
notice them here, because they have led distinguished 
scholars in several branches of law and administration 

[S9] 



to resort to the School, and have in this way broadened 
its influence. 

During Thayer's deanship, also, the organization of 
student life was greatly increased. Two dining clubs 
were either started or became established; the Legal 
Aid Bureau began its work. In the spring of 1910 the 
Faculty had established a Board of Student Advisers, 
drawn from the third year class, whose duties were to 
help beginners in the use of books and the preparation 
of briefs for the discussion in club courts. This board 
became a most valued instrument for the exchange of 
ideas between Faculty and students, and furthermore 
greatly increased the interest in the work of the club 
courts. With the interest of a fund given by Mrs. Ames 
to be used at the discretion of the Faculty, a prize compe- 
tition for the club courts was established and the advisers 
were entrusted with the administration of this contest. 
Dean Thayer was greatly interested in its success, attended 
many of the arguments, aided in the selection of judges, 
and at all times kept in close touch with its progress. 

Thayer entered heart and soul into the work of the 
deanship which, to him, as to Ames, meant placing him- 
self at every moment at the service of students who were 
in any kind of trouble or difficulty. To this work he 
devoted a considerable proportion of his time and thought 
during the five years of his administration. For in- 
stance, he gave an afternoon each week to visiting law 
students confined to the infirmary. 

In 191 1 Assistant Professor Scott was ofi^ered the dean- 
ship of the University of Iowa Law School. He was 
encouraged by his colleagues to go there for a year in 
order to establish the system which had been introduced 
by Professor Wambaugh more than twenty years before. 
Professor Scott accordingly went to Iowa and performed 
valued service there, thus repeating the experiment tried 
nine years before when Professor Beale organized the 

[60] 



Law School of the University of Chicago. Besides the 
work of this character performed by Harvard Law 
School professors, a large number of graduates of the 
School have spread the case system into law schools 
all over the United States. Langdell's ideas and stand- 
ards of scholarship have remained no exclusive posses- 
sion of Harvard, but have influenced thousands of lawyers 
who never saw Cambridge or even heard his name. 

To fill Professor Scott's place in part during the year 
191 1-I2, Warren Abner Seavey was appointed Lecturer 
on Pleading. Other temporary appointments during 
Thayer's deanship were Odin Barnes Roberts to lecture 
upon Patents and Lucius Ward Bannister upon Water 
Rights. 

Two permanent appointments were made in 191 3- 
14. When John Himes Arnold retired in September, 
191 3, and became Librarian Emeritus, his place as Li- 
brarian of the Law School was filled by Edward Brinley 
Adams, then in charge of the Social Law Library in 
Boston. On January 12, 1914, Felix Frankfurter, Coun- 
sellor for the Bureau of Insular Affairs in Washington, 
was appointed Professor of Law. 

Early in 191 5 Thayer was attacked by an obscure 
disease, which not only incapacitated him from work 
during most of the spring, but resulted in nervous de- 
pression of a serious character. He returned to work 
before the end of the year and conducted examinations 
in his course, but the strain of the work and the recur- 
rence of his disease resulted in a complete breakdown 
and in his sudden and lamented death. His service to 
the School cannot be measured by the shortness of his 
office. Like Langdell, he became Dean at a time of 
sudden change and development; and though he was 
not destined like his predecessor to see the success of 
the movement whose beginning he cherished, he power- 
fully assisted in giving it direction. 

[61] 



In order to conduct the administrative work of the 
School until the choice of a dean, Professor Scott, whose 
late experience in Iowa was now of service to the School, 
was made Acting Dean. A considerable amount of ad- 
ministrative work was assumed by the Secretary, thus 
lightening the task of the Dean. Professor Thayer's 
course on Evidence was taken by Arthur Dehon Hill, 
who was formerly district attorney for Boston, and had a 
broad experience in the trial of cases and especial interest 
in Criminal Law and Criminology. The course on Torts 
was taught by Chester Allen McLain, who had graduated 
from the Law School in 1915. For the year 1916-17 he 
was appointed the first incumbent of the Thayer Teach- 
ing Fellowship, which had been endowed by Mrs. Thayer 
after Dean Thayer's death. 

During the year Professor Pound was designated as 
Dean; and the Faculty was strengthened by the reten- 
tion of Mr. Hill as Professor of Law, and by the appoint- 
ments of Albert Martin Kales, an advocate at the Chicago 
bar and also a teacher of law at the Law School of North- 
western University, to a professorship for the year 19 16- 
17, and of Zechariah Chafee, Jr. of the Rhode Island 
bar to an assistant professorship. 

It is a far cry from two small rooms in an old dwelling- 
house to the two imposing and monumental buildings 
which now house the Harvard Law School; or from the 
solitary student of 18 17 to the eight hundred of to-day. 
Yet, striking as has been the material progress of the 
School, its intellectual development is no less surprising. 

The first half century was throughout a time of experi- 
ment. The School was a pioneer in a new and difficult 
task, and able men devoted themselves to that task, and 
succeeded. But with Langdell a new order of things 
began. From his coming there has been an unbroken 
tradition of legal scholarship, and the School has been 
not merely a law school, but the repository of a distinc- 

[62] 



tive legal science; it has created its own standards of com- 
mon law. This body of scientific thought, professed by 
the teachers and apprehended by the pupils, has come to 
be known, in student vernacular, as "the common law 
of the School." To its development Langdell brought 
first-hand study and logical precision; Thayer, depth 
of scholarship and historical insight; Ames, an ever in- 
creasing ethical and social element, and the fundamental 
conception of the entire law as a single thing, divided only 
for mere convenience into topics; Gray, the matured 
sanity and judgment of a man of affairs, and precision 
and elegance of statement; Smith, wide experience in 
the application of law and an illuminated common-sense 
which checked the excess of mere theory. Ten thousand 
students have contributed the energy and eagerness of 
youth, and knowledge of life in every part of the country. 
Incessant class-room discussion and argument among 
students out of class have wrought the fabric; and the 
Lazv Review has formed an organ of expression. The 
result has been the development of a complete and scien- 
tific conception of the common law such as no other 
institution or body of men has had the opportunity of 
creating. 



C63] 



CHAPTER II 

INSTRUCTION 

LEGAL education, at least so far as our civilization 
is concerned, has been carried on in one of four 
Methods of ways. The most primitive is the method of 
Instruction apprenticeship; the young man learns his 
law by sitting for many years in court, watching the 
administration of justice. It is thus that the traditional 
justice of the folk-mote recruited its ministers, in Greece 
and Rome as well as in ancient England. This method 
continued after the folk-law had been succeeded by the 
"judge-made" law of a professional tribunal. During 
the Middle Ages the students outside the bar took note 
of what was doing in court, and digested their notes 
under alphabetical headings; creating in this way one 
of the earliest forms of law book, the so-called Abridg- 
ment. The judges themselves condescended to notice 
these students, and to explain the more obscure proc- 
esses of justice. 

After a time this haphazard system of studying law 
was supplemented and at last superseded by a more 
finished method. Some lawyer, learned in a certain 
subject, presented to the students in a set lecture, or in 
a treatise, the whole law on his particular topic. From 
the later Middle Ages to the present day the readers of 
the Inns of Court have been delivering lectures on 
branches of the law; and during the same period 
treatises have been placed before the profession for the 

C64] 



information of those who would learn the law. In the 
history of the Roman law, Justinian's Institutes form a 
general treatise of this sort; while in our own legal his- 
tory the foundation of the Vinerian Professorship at 
Oxford, and its first-fruits, Blackstone's Commentaries, 
furnish the classic example of this method of instruction 
and of the lecture-treatise which it produced. 

As treatises multiplied, a third method came into use; 
comment by the teacher on a text in the student's hands. 
This was the method pursued in the mediaeval schools 
of Italy. Accursius, Bartolus, and their successors glossed 
or commented on the text of the corpus juris. The system 
of teaching by lectures tended toward this third method, 
as lecturers published their treatises, and either com- 
mented upon them afterwards themselves or provided 
them as material for the comment of others. From the 
publication of Blackstone's Commentaries to the publi- 
cation of Langdell's Cases on Contracts, this was the pre- 
vailing method of legal instruction in America, and it 
still survives in the "textbook schools." 

The fourth method trains the students in legal inves- 
tigation through a first-hand study of judicial decisions 
and other sources, and tests by class discussion the results 
of this investigation. 

At the Harvard Law School the last three methods have 
been successively tried. Stearns, Story, Ashmun, Green- 
leaf, and Washburn in particular, made more or less use 
of the lecture method; though as each printed in a trea- 
tise or treatises the result of his investigations, the usual 
evolution into instruction by comment took place. 
James Bradley Thayer lectured for many years on Con- 
stitutional Law. Gray used the lecture as a means of 
imparting instruction later, more aptly, and more suc- 
cessfully than any of his predecessors; but he finally 
abandoned it for the Langdell "case system." The 
method of comment, used by all the earlier teachers, 

[6s] 



became in the hands of Joel Parker and Parsons the 
typical system. James Bradley Thayer was the latest 
to employ this method in undergraduate teaching; al- 
though in his later years Langdell's own method of class 
instruction took the form of comment on the cases, 
because his diminishing eyesight made the conduct of 
discussion impossible to him. But the greatest service 
of the school to the development of legal instruction has 
been rendered in the invention by Langdell, and the 
development by his successors, of the fourth method 
of instruction, the so-called "Langdell" or "case" 
method. 

This is not the place, even if it might conceivably be 
still desirable, to explain or defend the case method of 
instruction. Many articles have been written in favor 
of the system and many attacks have been made upon 
it by those not familiar with its operation. The only 
final answer to such attacks is the success of the method 
in actual use, as shown by the record in practice of stu- 
dents trained under it. A list of such students who 
have attained distinction in various branches of the pro- 
fession is a sufficient defence of the method. It must 
be granted that in order to insure its success, it must 
be used in a school which purports to teach the law not 
of a particular state, but of the entire United States; 
and it must be employed by professional teachers chosen, 
not for their skill in the practice of law or even on the 
bench or in writing treatises, but for legal scholarship 
and the ability to make men think. How the situation 
at Harvard has met these requirements will be presently 
shown. It must be admitted, furthermore, that the 
progress of the student in the school appears to be slower 
than under other systems of instruction, for the reason 
that the attempt is made not merely to convey informa- 
tion but to stimulate thought, to correct mental habits 
and to create in the mind of the student the mental 

[66] 



equipment and modes of thought of the sound lawyer. 
The student instructed by this system may leave school 
ignorant of the rules developed in important branches of 
law, for three years' study is too short to make a man 
master of every branch of a complex and rapidly grow- 
ing science. He ought, however, to be so trained that 
he will never be at a loss to find the required law and 
apply it to facts set before him, and this, after all, is 
the essential task of every lawyer in every branch of 
the profession. The perfection of technique in teach- 
ing which has been progressing at the Harvard Law 
School since 1870 has made it possible to instruct in 
a most difficult science classes of students of a size un- 
dreamed of, even a generation ago, and to give them 
such mastery of that science that they are at once pre- 
pared to cope with the greatest lawyers at the bar in 
the discussion of all questions involving intellectual 
knowledge of the law. This extraordinary result could 
only be attained by the use of a scientific system of in- 
struction employed by professional teachers in the teach- 
ing of an already highly educated student body. 

A characteristic quality of the Law School from the 
beginning of its history to the present time is its cosmo- 
politan character. In the first five years of cosmopou- 
its history, out of forty-one students, less tanism 
than one-half were from Massachusetts; they came 
from eight states, including Maryland, Virginia, and 
South Carolina, and from seven colleges. 

This fact, no doubt had its bearing on the character 
of the law taught in the School. It had been the custom 
to teach in an office to a few students the law of a par- 
ticular state ; and though in each state a few English law 
books were found, all the knowledge that supplemented 
these books was knowledge gained at a particular bar, 
or out of the few reports of the state which might previ- 

[67] 



ously have been published. There were in 1817 over 
one hundred volumes of American reports accessible to 
lawyers; and at least one-half as many in 181 2. Yet a 
set of lectures delivered in 181 2-13, at the Litchfield 
Law School, full of references to English books, contains 
a very few references to Connecticut Reports, and none 
or almost none to those of any other state. Such a course 
could hardly have been possible at Harvard, where the 
majority of students were not intending to practice in 
Massachusetts. Stearns' Real Property, published in 
1824, which was no doubt a transcript of his lectures, 
contains numerous references to the reports of the various 
states. An examination of five pages, taken at random, 
shows three citations of reported cases from New York, 
and one each from Massachusetts, Pennsylvania, Mary- 
land, Virginia, South Carolina, the Supreme Court of 
the United States, and England. 

Meanwhile the Supreme Court of the United States 
had been building up a jurisprudence which was identi- 
cal throughout the country. The "law of nature" (which 
meant the generalreasoningof common-law lawyers), inter- 
national law, commercial and maritime law. Federal law 
and Federal equity, "formed a common element of law 
in all the states." Instead of the common law of England, 
a common law of America was forming and the con- 
sciousness that their law was after all identical in its princi- 
pal features was taking possession of the bars of all the 
states. When Dane founded a professorship for a mem- 
ber of that Supreme Court which was the greatest agency 
in this new fellowship, he provided that the professor 
should teach no particular law but rather that which was 
common to America. "Branches of law and equity," he 
stipulated, "the most important and the most national, 
that is, as much as may be, branches the same in other 
states of the Union as in this; making lectures on this 
state law useful in more states than one; law clearly 

[68] 



NATHAN DANE 



A member of the Continental Congress, the draftsman of the Ordinance of 
1787 for the government of the Northwest Territory, author of Dane's "Abridge- 
ment," the profits of which he devoted to the Harvard Law School in 1828 in order 
to establish the School with Joseph Story at its head. {From an old print.) 



distinguished from that state law which is in force and 
of use in a single state only." 

Since Dane's time his principle has been strictly car- 
ried out. Through all changes of method and of policy, 
the School has held fast to the teaching of the general 
common law. Other schools have claimed to be better 
adapted to train lawyers for the bar of a particular state 
because they taught the local law and practice of that 
state; but they have either disappeared or changed their 
policy. The insistence of Harvard that the best training 
for a lawyer is a study of the common law as a scientific 
system, and that the study of a particular law only tends 
to make narrow and unenlightened practitioners, seems 
to be established in the Supreme Court of Experience. 
The effect of this policy, accepted as it has been sooner 
or later by most other schools, upon the body of Ameri- 
can law, is incalculable. When the best-trained lawyers 
at the bar have been taught to think of the fundamental 
law as the same throughout the country, and to regard 
the decisions of all common-law courts as of persuasive 
authority, the result has been a strong tendency to unity 
in the particular laws of most states, counteracting the 
centrifugal forces which if left to themselves would have 
split the country into fifty distinct kinds of law. The 
victory over separatism, though assured in most law 
schools, is by no means won in the courts ; but the grow- 
ing emphasis on uniform legislation and uniform con- 
struction of such legislation and the realization of the 
waste, delay, and confusion caused by a multitude of 
conflicting decisions on the same question in the same 
nation, point to an eventual fulfilment of Story's desire 
for the prevalence of general principles of commercial 
law throughout the United States. 

Dane expressed the belief that the best teachers of 
law would be judges or lawyers in practice, and he showed 

C69] 



his confidence in this view by procuring the appointment 
of Judge Story. This was an extremely happy choice 
Professional f^r sccuriug the cstabHshment of the Law 
Teachers School ; b ut Story himself continually lamented 
that his teaching suffered because of the length of time 
he was obliged to spend in his judicial duties. More 
than once he seriously contemplated resigning from the 
bench in order to do justice to his work in the School. 
Indeed, he actually did so a few weeks before his death. 
Greenleaf engaged in practice while he was teaching. 
This he felt to be necessary because of his small salary, 
but he was constantly expressing the need for another 
professor who could give his entire time to the School. 
The disadvantages of a practicing Faculty were deeply 
felt when both Story and Greenleaf were absent for sev- 
eral weeks, leaving the School in the untrained hands of 
a temporary instructor. This experience of the School 
with teachers who had outside interests was so convincing 
that for thirty years after the death of Story no one 
was appointed who did not devote all his time and ener- 
gies to the work of the School, and for three-quarters of 
a century this has been the settled practice. The result 
upon legal education not only at Harvard, but throughout 
the United States, has been most important, for the ex- 
ample of Harvard has sooner or later been followed by 
every school of consequence in the country. As a result, 
the teaching of law has become a profession and methods 
of instruction have been developed immensely more 
efficient than any which are possible when teaching is 
a mere by-product of practice. 

A consequence of professionalizing legal instruction has 
been a change in the type of teachers. Before 1870 they 
were almost without exception appointed after several 
years of practice and usually not until they had gained a 
reputation at the bar. Story's request for the promotion 
of Sumner to a professorship was denied, partly no doubt 

C70] 



because he was then a young and unknown lawyer who 
had not yet made such a name for himself as seemed to 
justify his nomination. With the selection of Ames 
directly after graduation from the School a new order 
of things began. "The gentleman who is to bear the 
brunt of this new experiment in the constitution of a 
law faculty," said President Eliot, in his report to the 
Overseers, "has some unusual qualifications for the place; 
. . . the experiment will therefore be tried under favor- 
able conditions. It will doubtless prove that young 
teachers can do very useful work in the Law School as 
well as in the College, the Scientific School, and the Medi- 
cal School; indeed, it would not be surprising if they could 
do a portion of the work of instruction better than older 
men." Ames' immediate success as a teacher, a success 
which far surpassed that of his predecessors, showed the 
practicability of the experiment. In fact, a man of ma- 
ture age, who has for many years been in practice at the 
bar, changes his habits with some difl[iculty. He has 
become used, as has been shrewdly said, to making him- 
self a temporary specialist in a narrow field, and finds 
it hard to adapt his mind to the quite distinct profession 
of the teacher, whose field must be the whole law. Al- 
though such men have become distinguished teachers, 
nevertheless the appointment of a fair proportion of 
young men, without long experience in practice, has 
proved advisable in most American law schools. 

This new policy has been the more successful because 
of the change during the century in the conception of law. 
Before the foundation of the Harvard Law School, law 
had been looked upon as a trade, and such teaching as 
was given was rather the instruction which a master 
gives to his apprentice than instruction in a real science. 
Story, himself trained in the old system, had felt its 
inadequacy and at the outset of his service expressed the 
need of a different method. "The law," he felt, "should 

C71] 



be taught scientifically." In the generation that passed 
between his time and Langdell's the systematic character 
of law was emphasized, and Langdell's declaration as to 
** proper scientific instruction" is well known. 

If it be granted that law is to be taught as a science 
and in the scientific spirit, previous experience in its 
practice becomes as unnecessary as is continuance in 
practice after teaching begins. It is common knowledge 
that a student upon graduation from a law school has 
a better grasp of the law as a whole than a lawyer whose 
practice at the bar has for many years been developing 
his mind toward the highly detailed study of particular 
questions or the accumulation of isolated sets of facts. 
The intellectual disadvantages of law practice have been 
graphically summarized by one of the greatest American 
advocates, Horace Binney. *'This indeed constitutes the 
great drawback from the profession of the law, not 
merely that the life of a lawyer has great sameness, but 
that the investigations which cost him the most time 
and labor do not in the slightest degree increase his stock 
of useful knowledge. . . . The lawyer's facts are unpro- 
ductive of all benefits, except to the fortunate client. 
When the cause is tried, the facts are of no more im- 
portance to the lawyer himself than last year's price of 
calico, nor to the rest of mankind perhaps half so much. 
. . . The more causes he has tried, the more time has 
he lost. The more facts he has investigated the less he 
knows." 

After twenty years of such a life a man may easily be 
a much poorer teacher than if he had spent the same time 
in the study of the general principles of the law. The 
teaching of law being purely intellectual, the requirements 
for a successful teacher are intellectual requirements 
only, and experience in practice is not an absolute ne- 
cessity. Practically no school would feel it wise to ap- 
point a faculty made up entirely without experience at 

[72] 



the bar, and that has certainly never been done at Har- 
vard. On the other hand, a school conducted chiefly by 
persons drawn from the bar after many years of prac- 
tice would lack the scientific intellect and the command 
of technique in teaching which must be found in any 
successful school. 

In the first period of the School no such set schedule 
of studies as could properly be called a curriculum existed. 
Professor Stearns gave a few lectures "em- jhe 
bracing a general course of legal instruction. Curriculum 
in which those parts of our system of jurisprudence in 
which we do not adopt the law of England are particu- 
larly noticed." He also held recitations "in several of 
the most important textbooks," conducted a moot court 
and debating club, and required written dissertations. 

At the beginning of the second period little change 
was made. The student still met the professor for 
"recitation and examination" in several legal treatises, 
the number of which rapidly increased during the period. 
Dane had proposed that his professor should prepare 
and publish courses of lectures on five subjects. Story 
did prepare and publish a number of treatises, which 
were afterwards used as the basis of instruction; but 
apparently he never did anything so systematic as de- 
liver a course of lectures upon any particular subject. 

When Greenleaf succeeded Ashmun, there appears 
to have been no immediate change; but according to 
accounts of students Greenleaf's lectures were more for- 
mal and carefully prepared, and gradually developed 
into discourses upon special topics, illustrated by treatises, 
instead of mere comment on specified texts. Upon 
Story's death, and the subsequent appointment of Kent, 
a change occurs in the form of announcement of the course 
of instruction. Courses of lectures on particular sub- 
jects of the law are now announced, together with the 

[73] 



name of the teacher of each course. The names of the 
books studied is also included, as before; but for the first 
time in the history of the School the course in the modern 
sense, and not the textbook, is the unit of teaching. 
Thus, in the Catalogue for 1845-46, the announcement 
of studies is made in the old form, "The following books 
are read with the Dane Professor." In 1846-47 it runs, 
"The following studies are pursued with the Dane Pro- 
fessor." A similar alteration is made in the report to 
the President. It would be interesting to inquire whether 
this change was due to the gradual development of Green- 
leaf's system, or to the previous experience of Kent, 
who is described as "since 1838 Professor of the Law of 
Persons and Personal Property in the Law School of 
the University of the City of New York," and must there- 
fore have been familiar with the subject-course. 

A curriculum, then, came into existence in the year 
1846. It consisted at that time of three distinct parts: 

1. An elementary course, given each year, comprising 
a study of Blackstone's and Kent's Commentaries. For 
the first year it was conducted by Professor Kent; in 
1847-48 by Professors Greenleaf and Parker; and thence- 
forth for 22 years by Professor Parsons, until it was 
abandoned in 1870. 

2. Several fundamental courses taught substantially 
every year during the ensuing third period of the School. 
These were Real Property, Equity, and Constitutional 
Law. 

3. A number of other courses, regarded as less funda- 
mental, which were offered at intervals during the period ; 
theoretically in alternate years, though sometimes a 
course was given two years in succession and sometimes 
more than one year elapsed before it was repeated. The 
courses given in such alternation at the beginning of the 
period, with the number of times they appear to have been 
taught, according to the President's report, are as follows : 

[74] 



XT c r> No. times given 

Name of Course before 1870-71 

Pleading 15 

Bills and Notes 14 

Domestic Relations 14 

Evidence 14 

Shipping & Admiralty 14 

Bailments 13 

Wills and Administration 13 

Partnership 12 

Insurance 11 

Sales II 

Agency 10 

Contracts 9 

Corporations 7 

In addition, four similar courses were added to the 
curriculum during the period: 

Arbitration (1850-51) 6 

Criminal Law (1853-54) 9 

Bankruptcy (1854-55) 9 

Conflict of Laws (1855-56) 7 

These courses, in the three classes, may be regarded 
as regular courses. There were in addition special courses, 
given from time to time as occasion served, as follows: 

Parliamentary Law (1848-49) 
Civil Law (1848-49, 1850-51) 
Currency (1860-61) 
International Law (1863-65, 1866-68) 
United States Jurisprudence (1869-70) 
Writs of Error (1866-67) 

All these subjects were offered to all students, without 
distinction as to class. 

With the advent of Langdell came an entire change in 
the curriculum, as well as a division between those courses 
which should be taken in the first year of law study, and 
those which, being more advanced, should be taken later. 

C7S] 



Of the four subjects given every year, the elementary 
course and that on Constitutional Law were dropped. 
Equity was shifted to the second year. Real Property 
was continued as an elementary course. Pleading, which 
had been given pretty regularly, became also a first year 
subject. The other courses in the first year were Con- 
tracts and Criminal Law, irregularly taught before, and 
Torts, which was entirely new. These five courses have 
constituted the work of the first year, or the greater part 
of that work, from that day to this. 

The advanced work at first comprised courses that 
belonged to the earlier period, — Equity, Evidence, Corpo- 
rations, Wills, and Constitutional Law. To these was 
added a modern course on Sales, never afterwards omitted. 
But in a few years advanced courses in the modern form 
were established. These were Equity (1873), Evidence, 
Trusts, Property, Bills and Notes (1874), Partnership 
and Corporations (1875), Agency and Carriers (1876). 
Other courses were brought into the curriculum as follows : 
Constitutional Law (1879); Conflict of Laws (1879; 
omitted from 1888 to 1892, and thenceforth a regular 
course); Wills (1880-1889, when it was merged in second 
year Property); Suretyship and Mortgage (1882); Per- 
sons (1882); Quasi-Contracts (1886); Corporations, as 
a separate course (1890); Carriers, which had been 
dropped as part of the Agency Course in 1885 (1891); 
Insurance (1893); Damages (1893); Bankruptcy (1898); 
International Law (1898); Admiralty (1900); Muni- 
cipal Corporations (1907); Restraint of Trade (1916). 
In 1899 the course on Carriers was announced as includ- 
ing the law of Public Service Companies. The course 
on Bailments given in alternate years before 1870 has 
never been offered since that time as a separate topic. 

Several special courses, or courses given at irregular 
intervals, have been offered since 1870. These are Juris- 
prudence (in 1872, 1879 to 1883, 1896 to 1901, 1908 to 

[76] 



date); United States Jurisdiction (1872, 1886 to 1891, 
1916); Legal History (1886, 1887, 1894, 1912 to date); 
Roman Law (1897, 1910 to date). A short course on 
Statutes formed for a few years part of the course on 
Persons; and an advanced course on Contracts was 
offered for a few years. 

Besides the regular subjects, a number of courses not 
counting towards the degree have been given from time 
to time, Massachusetts and New York Practice, Patent 
Law, Mining, and Water Rights. Several special courses 
of lectures have also been offered; but these cannot 
properly be regarded as part of the curriculum. Moot 
courts on kindred disputations were either required or 
elective until finally abandoned in 1897. 

The graduate courses now offered to candidates for the 
degree of S.J.D. include Roman Law, and the Principles 
of the Civil Law and Modern Codes as developments 
thereof; International Law as administered by the 
Courts; International Law Problems of the European 
War; Private International Law; Jurisprudence, with 
especial reference to problems of law reform in America; 
Administrative Law; Modern Developments in Proced- 
ural Law; Penal Legislation and Administration; His- 
tory of the Common Law, and Introduction to the Year 
Books. The course in Roman Law is required for the 
advanced degree. The candidate must take two addi- 
tional hours a week of graduate courses, but beyond that 
is free to elect subjects open to undergraduates if he 
wishes. Most of the graduate courses are taught with- 
out a case book or textbook, and consist largely in the 
investigation of special topics. 

During the whole history of the curriculum it is inter- 
esting to note that some courses have been taught for 
a long period of years by the same person, while others 
have had no such continued tradition. It is also inter- 
esting to note that no teacher in the sixty-five years 

[77] 



under consideration has confined himself to two or three 
subjects; even those who were identified with one or 
two courses have from time to time taught several others. 
Of the group before Langdell the following persons 
taught the same course more than ten times: 

Blackstone and Kent, Parsons, 22 times. 
Property, Washburn, 22 times. 
Equity, Parker, 20 times. 
Constitutional Law, Parker, 17 times. 
Pleading and Practice, Parker, 13 times. 
Shipping and Admiralty, Parsons, 13 times. 
Bills and Notes, Parsons, 12 times. 
Evidence, Parsons, 11 times. 
Bailments, Parker, 11 times. 
Criminal Law, Washburn, 1 1 times. 
Domestic Relations, Washburn, 10 times. 
Insurance, Parsons, 10 times. 
Partnership, Parsons, 10 times. 

Washburn, whose work on Property was one of the 
two principal books published at the School during this 
period, taught the subject 22 times; while on the other 
hand, Parsons, whose Contracts was the other treatise 
of importance, taught that but nine times. 

In the period from 1870 to 19 17 the following courses 
have been taught fifteen times or more by the same 
teacher: 

Property, Gray, 36 times. 
Trusts, Ames, 31 times. 
Evidence, Thayer, 27 times. 
Equity, Langdell, 25 times. 
Contracts, Williston, 25 times. 
Agency, Wambaugh, 25 times. 
Conflict of Laws, Beale, 24 times. 
Criminal Law, Beale, 23 times. 
Constitutional Law, Thayer, 22 times. 
Pleading, Ames, 21 times. 
Sales, Thayer, 21 times. 
Insurance, Wambaugh, 21 times. 

[78] 



Torts, Smith, 20 times. 
Partnership, Ames, 18 times. 
Sales, Williston, 18 times. 
Bills and Notes, Brannan, 18 times. 
Partnership, Brannan, 17 times. 

But teachers who have taught one subject many years 
have also, as a rule, either before confining their attention 
to one or two courses or while they did so, taught a con- 
siderable number of other subjects in various branches 
of the law. Thus the teachers named in the foregoing 
list have at some time, in the Harvard Law School or in 
some other law school, taught the following subjects: 

Gray: Property (I, II, and III), Bankruptcy, Evidence, Agency, 

Partnership, Persons, Conflict of Laws, Constitutional Law, 

Jurisprudence (11 different courses). 
Ames: Trusts, Pleading, Partnership, Torts, Sales, Bills and Notes, 

Contracts, Equity (II and III), Quasi-Contracts, Admiralty, 

Suretyship, Legal History (13 different courses). 
Thayer: Evidence, Constitutional Law, Criminal Law, Trusts, 

Agency, Carriers, Sales (7 courses). 
Langdell: Equity (II and III), Suretyship, Mortgage, Pleading, 

Sales, Bills and Notes, Contracts (8 courses). 
Williston: Contracts, Sales, Bankruptcy, Pleading, Bills and 

Notes (5 courses). 
Beale: Criminal Law, Conflict of Laws, Carriers, Damages, 

Property (I and II), Pleading, Evidence, Equity II, Liability, 

Legal History, International Law, Jurisprudence, Contracts, 

Suretyship & Mortgage (15 courses). 
Wambaugh: Agency, Insurance, Pleading, Contracts, Property I, 

Quasi-Contracts, International Law, Equity (II and III), 

Bills and Notes, Evidence, Corporations, Roman Law, Legal 

History, Study of Cases (15 courses). 
Smith: Torts, Agency, Corporations, Persons (4 courses). 
Brannan: Bills & Notes, Partnership, Damages, Bankruptcy, 

Torts, Evidence (6 courses). 

It is clear that a teacher becomes better equipped to 
teach a subject the longer he teaches it, in the indispen- 
sable qualities of knowledge, clearness of conception, 

C79] 



certainty of grasp, mastery of detail, and technique. 
On the other hand, since no part of our law has developed 
independently of the rest, no teacher can teach as well 
as he ought without a wide knowledge of those subjects 
of the law which lie outside his particular field of study; 
a knowledge which can most effectually and scientifically 
be gained by teaching. The experience of the Law School 
seems to prove that a teacher of law ought to devote 
the greater part of his life to the study and teaching of 
one or two special subjects; but that he should also at 
some time give a number of courses on other branches of 
the law. 

The first case book prepared for use in teaching was 
Langdell's Cases on the Law of Contracts, published in 
The Evolution ^^7^- This collection of cases covered only 
of the Case a few topics in the law of Contracts ; and upon 
each topic covered all the important English 
cases were reprinted in chronological order, followed by 
American and Scotch cases. One argument of a great 
French lawyer was included, to enforce a doubtful point. 
An index was added. As conducted by Professor 
Langdell, the principle deduced by the first case was 
followed chronologically through its developments and 
applications in the later cases, until by constant itera- 
tion all doubt or forgetfulness was removed. This proc- 
ess, slow-moving but irresistible, like Langdell's own 
mind, was caviare to the general, and his successors did 
not carry on a course at so slow a rate. 

A partial collection of cases on Sales of Personal Prop- 
erty followed in 1872, but was never finished. The cases 
were selected upon the same principle, and the Index 
was so full as practically to constitute a short treatise 
on the subjects covered. 

In 1878 appeared his Cases on Equity Pleading, his 
first completed collection; and in 1879 the second edition 

[80] 



of his Cases on Contracts. Both these collections were 
followed by summaries of the law covered, concise but 
profound, which have been useful to lawyers as well as 
to students. It has usually been felt that too much help 
was thus given to the student by these summaries; and 
with the exception of Ames's Cases on Bills and Notes, 
which had an elaborate exposition index, and Beale's 
Cases on the Conflict of Laws, the later Harvard case 
books contained no summary. 

Langdell's case books were published by Little 
Brown & Co. The first books prepared by one of his 
colleagues were Ames's Cases on Torts, published in 
1874, and his Cases on Pleading, 1875. Ames printed 
and published these collections himself, being unable 
to find a publisher willing to undertake the burden; and 
with the exception of his Cases on Bills and Notes (1881) 
he pursued the same course throughout. It was Ames 
who really fixed the type of case book in American law 
schools. His decisions were chosen, not with a purpose 
of tracing by slow steps the historical development of 
legal ideas, but with the design, through the selection 
of striking facts and vivid opinions, of stimulating the 
thought of the student, and leading his mind on by one 
step after another until he had become familiar with the 
fundamental principles of the subject and the reasons 
for them. Ames himself worked out one or two founda- 
tion principles in each topic, guided the class in its discus- 
sions to the adoption of these principles, and then used 
them for the solution of every problem that arose. His 
method became, at least for his pupils the typical 
method of teaching by cases: Keener followed it, and 
later Wambaugh, Williston, Beale, and their younger 
colleagues It may well be said that it was the very wide 
use of Ames' nine case books that established the case 
system in other law schools, and this wide use, quite 
unexpected to Ames, of books which he perforce published 

[81] 



for himself, led to his realizing considerable profit from 
their sale. 

Until 1888 these books of Langdell and Ames were 
the only case books in use in American law schools; but 
in 1886 Gerard Brown Finch had compiled for the use 
of students in the English universities a collection of 
Cases on Contracts after Langdell's method. In 1888 
Gray, who had been teaching Property by lectures, 
brought out the first two of his six volumes of Cases on 
Property; and Keener issued a two- volume collection 
in Quasi-Contracts. In 1892 Thayer published his Cases 
on Evidence; in 1893 Smith added a volume of Torts 
to Ames' first volume. Every teacher in the Harvard 
Law School was now teaching in at least one course from 
his own collection of decisions; Langdell's case was won 
in his own school. 

At almost the same time the use of case books began 
to spread to other schools. Wambaugh, a graduate of 
the class of 1880, went in 1890 to the University of 
Iowa, where he introduced the system; and in order to 
teach the use of reports published his Study of Cases 
(1892), consisting of an introduction, followed by cases 
on two or three subjects for analysis and discussion. 
Keener went in the same year to Columbia, where in 
1 891 he reprinted Finch's Cases, together with the perti- 
nent portions of Leake's Digest. Since this experiment of 
a modified form of the case system did not prove satis- 
factory, he returned to the old form in his later collections. 

At Harvard meanwhile, in 1891, Chaplin published a 
volume for Criminal Law, which was succeeded by 
Beale's book on the same subject in 1894; and since 
that time collection succeeded collection until every 
subject taught was covered. 

The first case book of outside origin used at Harvard 
was McClain's on Carriers (1894), which incorporated 
suggestions by the teacher of that course at Harvard 

[82] 



and was used by him. The earliest books prepared with- 
out direct influence from Harvard were Huffcutt and 
Woodruff's Cases on Contracts, 1894, and Pettee's Illus- 
trative Cases on Contracts and on Personal Property in 
1893. In the latter year was also published Snow's 
volume on International Law, for the use of college stu- 
dents. The increasing sale of these books had attracted 
those alert publishers, the West Publishing Company, 
and they entered into competition for a share of the trade. 
They first proposed to buy the copyright of the Harvard 
case books; but being unable to do so, they issued suc- 
cessively three series of case books for the use of law 
schools. Their example was quickly followed, and from 
the year 1895 the multiplication of case books became 
more and more rapid. 

There can be no doubt that this is for the good of legal 
education. Every teacher of law has his own way of 
teaching, which is the best way for him; he needs to select 
his own topics, make his own analysis, and choose his 
own cases. Now that the case system of instruction has 
been adopted in substantially all the large and important 
law schools, a multiplication of case books is a desirable 
phenomenon. 

The question of how, and how far, practice should be 
taught in a law school is one of the unsettled questions 
of legal pedagogy. There are those who Practice 
claim to be able, through practice courts, to Courses 
teach a student as well as he could be taught in an office. 
The Harvard Law School, while admitting that this can 
be done, has always taken the position that it would be 
done at too great an expense, since it would involve the 
use of time that could much more profitably be spent in 
learning the science of law. The belief of the School 
is that law can be studied as a science and in its entirety 
only in a law school, while practice may be more quickly 

C83] 



and effectively learned outside the school. The precious 
hours of school instruction should therefore property be 
devoted to other learning. 

There are, however, certain portions of local law and 
practice which a student must learn before his admission 
to the bar; and since it is often desirable that a student be 
admitted at once upon his graduation from the Law 
School, the School has felt it a duty to offer such instruc- 
tion as may be necessary to students who intend to apply 
in Massachusetts or in New York. The practice of other 
states is not taught in the School, first, because the number 
of students intending to practice in any other state is not 
so great as to justify the expense of a special course; 
second, because Massachusetts and New York may be 
regarded as duplicate types, the one having the Common 
Law and the other the Code Practice. It is common for 
students who intend to practice in other states to form 
clubs in which the local practice of their state is studied. 
This, however, is outside the regular curriculum. 

The courses in Massachusetts Practice (begun 1890) 
and in the New York Code of Procedure (begun 1892) 
have been given in alternate years since 1896. They 
are conducted entirely by lectures and demonstrations 
and include not merely practice in the narrow sense of 
the term but some instruction in peculiar statutory pro- 
cedure, such as poor debtor process, liens, and so forth. 
This instruction has proved sufficient to enable students 
to pass their bar examinations; and while it is true that 
the young graduates of the School have been criticised 
from time to time for not knowing the way to the post- 
office or not understanding the mechanics of the short 
trial list, these defects are easily remedied by a few days' 
experience. 

Efforts have been made from time to time to give stu- 
dents some experience in the trial of cases by substituting 
a trial of the facts before a jury for the argument of ques- 

[84] 



tions of law, whether in the law clubs or in the obsolete 
moot court. Interesting experiments have been made 
in acting out a legal injury and summoning the witnesses 
of the event to testify; and on the other hand in coaching 
witnesses on the points of actual testimony in their re- 
ported trial and having them reproduce the testimony 
in the Practice Court. Such experiments have been more 
successful in affording amusement than in substantial 
benefit to the participants. A fact trial now and then is 
well worth while, but only as a relief to the tedium of 
serious work. 

Of late years no effort has been made by the faculty 
to teach Practice except through the regular courses 
already mentioned. The organization of the Legal Aid 
Bureau, hereafter described, has given to the students 
concerned in it a very efficient training in the actual 
workings of Massachusetts procedure. 



[85] 



CHAPTER III 

THE LIBRARY 

IN its issue of July 12, 1817, the Boston Daily Adver- 
tiser published an editorial notice announcing that 
*'the government of Harvard University have lately es- 
tablished, under the patronage of the University, a School 
for the instruction of students at law. . . . The stu- 
dents . . . will have access to a complete law library 
to be obtained for their use." "A complete law li- 
brary" must have been a far simpler matter in 18 17 than 
in 191 7, but even a hundred years ago the Corporation 
scented the difficulty which has attended the library 
at many periods since, and at this moment threatens 
to arrest its growth and stunt its proper development. 
"The students shall have access," ran the Corporation's 
vote establishing the School "to ... a complete law 
library [to] be obtained for their use as soon as means 
for that purpose may be found." 

Meanwhile there were very few law books in Cam- 
bridge. Cotton Mather had spoken of the library at 
Harvard College as the "best furnished that could be 
shown anywhere in all the American regions" and had de- 
scribed the satisfaction he felt when he "had the honor 
to walk in it, making him think with pity upon princes 
ignorant of such felicity." The catalogue of that li- 
brary, published in 1723, shows the whole number of vol- 
umes of the common law therein contained to have 
been seven. Additional law books had been received 

[86] 



between 1723 and 1817, but they were largely books of 
the civil law — meagre and indigestible provision for 
the infancy of a school founded to train lawyers in the 
common law. The Corporation immediately author- 
rized ^500 to "be expended for purchasing law books 
by the Treasurer joined to the Professor of Law." John 
Howe added ^100 more, and the Professor of Law spent 
^81.74 more than these two appropriations, a sum which 
was subsequently made good to him. A year later the 
Corporation voted that "the University Professor of 
Law be authorized from time to time to receive from the 
College library into his custody such law books as a 
committee of the Corporation appointed for the purpose 
shall think proper, said Professor to give a receipt and 
be accountable for the same and to return them when 
required." Stearns had done what he could with ^681.74 
to purchase "a complete law library," but he seems to 
have felt that his collection, if it was to make even a 
distant pretense of deserving that generous description, 
must contain many more books than he could buy with 
the paltry sum at his command. Accordingly, he re- 
moved from the College library to his office in College 
House as many law books as he could find and was 
permitted to take. The Committee of the Overseers to 
visit the library grew uneasy. Only a year later it 
reported: "By finding so very large a number of law 
books removed from the library, the Committee, with 
great deference, would inquire whether this accommo- 
dation granted to a particular department may not 
establish a precedent which shall lead professors in other 
branches not merely to solicit, but with the greatest 
propriety to expect, a like indulgence, and this be the 
means of parceling out the library into private houses, 
beyond the care of the College librarian and the use of 
those who apply for books." A Committee of the 
Corporation reported in a similar strain. Meanwhile, 

[87] 



Professor Stearns received no more money with which 
he could buy books directly for the library in his office. 
A few lawyers of distinction recognized that the infant 
needed nourishment, and occasionally fed it books. 
The Hon. Christopher Gore gave to the College, for the 
use of the law students, most of the law books he had 
collected, including many that had formerly belonged to 
great lawyers like R. Auchmuty, James Otis, Jeremiah 
Gridley, and Samuel Sewall, and contained their auto- 
graphs. He also gave a manuscript copy of some of the 
opinions and judgments of the Commissioners in prize 
matters, of whom he was one, who had sat under the pro- 
visions of Jay's Treaty. The Hon. Daniel Chipman of 
Vermont gave his Essay on Law of Contracts for the Pay- 
ment of Specific Articles. The Massachusetts Historical 
Society gave eighteen volumes of its Collections; Judge 
Jackson presented a book or two, and Caleb Cushing 
gave an edition of Pothier on Maritime Contracts which 
he had translated. Professor Stearns kept his own books 
on the same shelves as those belonging to the School 
and lent them freely to the students. The library in 
his office, small as it was, soon fell into inextricable confu- 
sion. Part of the books belonged to him, part belonged to 
the College, part had been given or lent by the Common- 
wealth of Massachusetts, part had been given to the 
College for the use of law students, and part had been 
purchased for the School with the original fund appro- 
priated by the College and the donation of John Howe. 
Although the books were few, the need of a catalogue 
was already felt. There was no money to publish an 
official catalogue and in 1826 two students (one of them 
a son of the Professor) prepared a catalogue and printed 
it for circulation among their fellow-students. In one 
of the copies of this catalogue now in the School's library 
a sign has been written in ink opposite each title. These 
marks, according to a statement on the fly leaf, indicate: 

[88] 



1. Books presented by Hon. Mr. Gore. 

2. Books removed from the College library. 

3. Books remaining in the College library. 

4. Books belonging to the University Professor. 

5. Books purchased by the Professor and to be paid for out of the 

Makepeace debt. 

6. Books purchased in 1817 and 1819 with funds furnished by the 

College, with one donation of ^100 from the late Mr. John 
Howe of Boston. 

7. Books given by a resolve of the Legislature obtained by the 

Professor in 1818. 

8. Books missing. 

This catalogue contains 587 titles. Of these 135 belonged 
to the Professor and 41 remained in the College library. 
There were many duplicate entries, e.g.^ Attachment, 
Treatise on, by T. Sergeant and Sergeant, Thomas, on 
Foreign Attachment; Laws of New York, 2 vols., Albany, 
1802, and New York, Law of, 2 vols., Albany, 1802. 
About a dozen titles were marked as missing. The Pro- 
fessor took with him his private books when he resigned 
early in 1829, and the books "removed from the College 
library" and those *' given by a resolve of the Legislature 
obtained by the Professor in 1818" were subsequently 
returned. Very little now remains of the original col- 
lection, such as it was. 

The number of volumes in a library is a poor measure 
of the value of its contents, but it seems clear that at the 
end of the first period in the history of the School its 
library was perfectly insufficient. After all, the School 
was not yet much more than a lawyer's oflfiice, and it was 
natural enough that the books in it should be few more 
in number and collected with little more system than the 
books in the office of the ordinary practitioner of the 
time. 

In November 1829, a month or two after Story had 
begun to teach in the Law School, he wrote to President 
Quincy: "One of the most important objects is to give [the 

C89] 



School] at once in the view of every student a decided 
superiority over every other institution of the like nature. 
It will, therefore, obtain a fixed reputation with the Public 
and give some confidence to parents that neither the time 
of their children nor their own money will be expended 
without an adequate return. . . . To accomplish this 
end it is indispensable that students should have ready 
access to an ample law library which shall of itself 
afford a complete apparatus for study and consultation. 
I need not say that no such library now belongs to the 
College. ... In a practical sense the present law library 
is of very little value or importance. We have very few 
of the best elementary books and of those we have most 
are of poor editions. . . . The textbooks of study re- 
quired by the students may be obtained without much 
difficulty, but those which are required for occasional con- 
sultation are very deficient." At the same time Professor 
Ashmun wrote: "I do not suppose there can be any doubt 
of the necessity that the student should at once be fur- 
nished with an extensive library. It is not only in fact 
indispensable, but, what is not to be overlooked, it is by 
them so considered." 

Story himself had been carefully collecting a law library 
for many years. His means were limited — his salary 
at the School was only ^looo and he persistently refused 
to allow it to be increased — he could not, therefore, 
afford wholly to present his library to the School. But 
because he felt the urgent and instant need, he offered 
to the College his collection of 563 volumes of Law Re- 
ports at ^4 per volume. The Corporation accepted the 
offer, "being satisfied from information obtained from 
Judge Jackson and Professor Ashmun that the price is very 
low." In fact it was very low, and the Corporation the 
same day insured the books for ^4000. 

There begins the great tale. Story's 553 volumes have 
now expanded to more than 170,000. From that begin- 

C90] 



ning until to-day the School's library has constantly ex- 
celled in size and completeness the library of any other 
law school in the world. A year or two later Story sold 
to the School the remainder of his law library, consisting 
of 384 books in English and 123 in foreign languages, 
for the very modest price of ^1400, less than half the cost 
of the books. 

In 1832 that "spacious building," Dane Hall, the 
second home of the School, was dedicated and the library 
was moved into two rooms on the lower floor. In 1834 
a second catalogue of the collection was prepared by 
Charles Sumner, then librarian. The library then con- 
tained something more than 3500 volumes. "While 
writing this page," said Sumner in his preface, "informa- 
tion has been received of a splendid bequest by the late 
Samuel Livermore, Esquire, of New Orleans ... of 
his entire library of works on the Roman, Spanish and 
French law." President Quincy later said of this library, 
in his history of the University, "As a collection of rare, 
curious and important learning, it is probably not ex- 
ceeded and perhaps not equaled by any other collection 
of its size in America, if it be in Europe." Both Pro- 
fessors Story and Ashmun realized the importance of the 
library to the School, as their letters show, and they 
labored zealously for its advancement. 

In 1 841 the library contained more than 6100 books 
and another catalogue was felt to be necessary. " Since 
the publication of Mr. Sumner's catalogue in 1834," said 
William R. Woodward, Librarian, "the library has been 
enriched not only by extensive purchases both in America 
and in Europe, but by the receipt of Mr. Livermore's 
splendid donation and by valuable presentations from 
Mr. Justice Story and other distinguished friends of the 
legal profession which, while they do honor to the donors, 
also place this library among the first in this country, or 
perhaps in any country, as a collection of general and 

[91] 



municipal jurisprudence. The donations and importa- 
tions since 1834 have been such as to enable the student 
to verify every citation which is made in Blackstone's 
Commentaries, nearly complete the collection of Euro- 
pean law, both British and Continental, from the earliest 
times down to the eighteenth century; exhibiting to the 
student the principal sources of modern jurisprudence. 
The library also contains several works upon Asiatic law, 
particularly upon those portions which are in use in the 
British East Indian possessions. The collection of the 
modern codes of continental Europe is probably more 
ample than that of any other in this country; and impor- 
tations of the most valuable of the latest British and 
continental law books and legal reviews are regularly 
made." 

Others, however, felt that Mr. Woodward was some- 
what too complacent. A writer in the American Jurist 
for October, 1841, said: 

*'The publication of this catalogue enables us to judge, 
in some sort, of those means of obtaining a law education, 
in the Law School at Cambridge, which are independent 
of the personal labors of the distinguished professors of 
that institution. In the departments of English and 
American law, little perhaps is wanting; but, in some 
departments of general jurisprudence, much is to be de- 
sired. In the department of Roman law, for example, 
we find none of the modern works, with the exception of 
the unfinished English translation of Savigny's history, 
by Cathcart, and a French translation of the same work, 
and the newly discovered fragments of Gains; and yet, 
in no department of jurisprudence, has the present cen- 
tury produced more, or more valuable work. We venture 
to say that, with the exception of the corpus juris itself, 
there is hardly a single book in the law library of Har- 
vard College which a modern Professor of Roman Law 
would think of putting into the hands of his pupils. We 

C92] 



desire not to be misunderstood. The works on Roman 
Law, in this library, are undoubtedly valuable, and well 
deserve a place there; and the same may be said, and for 
much the same reason, of Bracton, Glanvil, and the year 
books; but the former are as little suited to the modern 
student of the Roman Law, as are the latter to the stu- 
dent of the Common Law. ... In modern works on the 
Roman Law, the library of the Boston Athenaeum is 
infinitely richer, though that, we believe, has received no 
accessions in this department within the last fifteen years. 
In Criminal Law and prison discipline, the works on 
which, produced in continental Europe within the present 
century, would, of themselves, constitute a large collec- 
tion, the library is almost entirely deficient; and, of all 
modern works of public law, and the philosophy of law, 
we find few or no traces. Of all the countries of Europe, 
or, indeed of the world, Germany now produces the 
greatest number of works on jurisprudence and its kin- 
dred topics, which are almost all of them written in 
German; and, yet, astonishing as it may seem, the law 
library of Harvard University, — among the first, 'per- 
haps in any country as a collection of general and 
muncipal jurisprudence,' containing a nearly complete 
collection 'of European continental law,' from the earliest 
times down to the eighteenth century, and furnished 
with the 'most valuable' among the latest 'continental 
law books and legal reviews,' — as Mr. Woodward would 
have us believe, — does not, so far as we have been able 
to discover from the catalogue before us, contain a single 
work in the German language!" 

But Story and Greenleaf needed no spur. They 
bought as much as their funds would allow. "It is to 
be regretted," Greenleaf had said in 1836, "that the state 
of the funds will not yet enable us to complete the col- 
lection of American law as the honor of the Institution as 
well as the interest of the students would seem to require." 

[93 ] 



The finances of the School between 1841 and 1846 were 
easier, and the annual sum spent for books during that 
period was well over ^2500, or more than twice as much 
as had been spent annually in the seven years between 
Story's catalogue and Woodward's. A fourth catalogue 
of the School was published in 1846. The Law School 
Visiting Committee had reported to the Overseers that 
"the want of a complete catalogue is felt, though appli- 
cation of it to annual examinations must be attended with 
some difficulty, as so many of the volumes are in requisi- 
tion for the students. But being printed, it would be- 
come a guide to those who might be desirous of increasing 
by donation the already admirable collection." The 
annual catalogue of the University for the academic year 
1846-47 gives the number of volumes in the law school 
library as about 12,000, nearly twice as many as in 1841. 
In October, 1845, Greenleaf surveyed the result of his 
efforts and proudly reported "The law library, by 
comparing its catalogue with those of foreign libraries 
so far as we have received them, is found to exceed any 
other known to us, in extent of its range and the variety 
of foreign laws which it comprises, though several others 
exceed it in number of volumes." In 1847 the Visiting 
Committee reported, — "The library is in excellent 
order and preservation," and "its present state and 
progressive increase gave much pleasure to the gentlemen 
who inspected, assisted as they were by Professor 
Greenleaf." 

Story died in 1845 and Greenleaf resigned in 1848. 
After that, for many years no one seems to have taken 
particular interest in the library. The School continued 
to follow its old custom of furnishing gratis to each stu- 
dent textbooks prescribed in his courses, but otherwise 
purchases of books were on a much smaller scale than 
formerly. In the academic year during which Story 
died over ^3250 had been spent for books and this was 

C94] 



about ^600 less than had been spent the year before. 
For the two years more that Greenleaf remained at the 
School purchases were considerable. After that the 
amount spent for books rapidly fell off. The year after 
Greenleaf's resignation it was less than ^600 and ten 
years later only a little more than ^300. For the whole 
period of twenty-four years between Story's death and 
Langdell's appointment as Dean, the average annual 
outlay for books, including the cost of the free textbooks, 
was well under ^1000. The annual catalogue of the 
University for 1869-70 announced that the Law School 
library contained about 15,000 volumes. This was an 
increase of 3000 volumes in twenty-four years, an average 
of 125 a year. Very many of these were the duplicate 
textbooks furnished to the students. It is said that in 
1870 there were more than 3000 such books owned by the 
School and counted as part of its library. Of course 
these had not all been bought after 1846. If they had 
been, the increase of the library in twenty-four years 
would have been exactly nil. At most, it was very small. 
But there were other reasons than the apparent in- 
difference of the professors for the slight increase of the 
library during the quarter century before Langdell. In 
the first place, it was giving pretty satisfactorily the 
service demanded of it. In 1846 the Visiting Committee 
had reported: "The law library is not without reason 
judged to be the best collection of law authorities in our 
Union." In 1851 they said in mouth-filling phrase that 
the library "attracts, as it highly deserves, the attention 
of not private individuals alone but public bodies also, 
and not simply that of our own patriotic countrymen, 
but also of foreign friends to the progress of juridical, 
civil, and political knowledge." In 1852 it is said that 
"the library in its completeness is as honorable to the 
College as it is useful to the students." In 1854 "it is 
believed that . . . [the School's] library is more afflu- 

[95] 



ent of law books in the English language than any 
other collection." Moreover, after 1856 times were hard 
for the School. The library was then wholly dependent, 
as it is now mainly dependent, on what was left over from 
necessarily fluctuating tuition fees after the expenses of 
teaching and maintenance had been paid. The School 
had had a comfortable balance on the treasurer's books 
until 1856-57, when the unfortunate investment in 
Brattle House turned a surplus of over sixteen thousand 
dollars into a deficit of over six. It was almost ten 
years before there was a surplus again. During these 
years, of course, as much saving as possible had to be 
effected in the general funds of the School, and that meant 
small expenditure for books. 

Probably the straitened financial circumstances of the 
School furnished the reason, also, for the delay in the 
appointment of a permanent librarian. As early as 1855 
the Visiting Committee had reported "little regularity 
in the management of the books and a general want of 
neatness and method," and suggested a permanent li- 
brarian. The student librarians could in the nature of 
things look after the books only half-heartedly, and many 
were lost. In 1858 it was said that 150 books were mis- 
sing, "being 41 more than the total additions during the 
year." Such a condition, said the Visiting Committee, 
disclosed "a bibliofuracity . . . deserving of special punish- 
ment . . . carelessness not to be distinguished from 
crime." Another committee reported in 1861 that an ex- 
amination of the books in 1858 showed that in the past 
twelve years the total losses had amounted to 870 vol- 
umes. "Your Committee," it said, "looks upon this 
state of things as truly alarming; . . . security should 
be the first law of such a collection. . . . The Librarian 
is not a librarian in the common acceptation of the term 
— a keeper of books — for he exercises no special super- 
vision." ... 

C96] 



The modern life of the School and of its library began 
with the coming of Mr. Langdell in 1870. The change 
in methods of teaching which Langdell inaugurated and 
which his colleagues and then the country gradually 
adopted involved of necessity radical changes in the 
library. The law, Langdell thought, was a science and 
not a collection of isolated facts. To learn this science, 
as to learn any other, the student must seek the living 
founts — he must deal in the stuff that forms the subject 
matter of his study. As the new Dean said: "The li- 
brary is to us what the laboratory is to the chemist or 
the physicist and what the museum is to the naturalist." 
No one knew as well as he what was needed to make the 
library a fit instrument for his teaching, for while his plans 
still puzzled others, they were clear in his own mind, and 
moreover he had himself served as librarian for several 
years, when he was a student in the School. Three steps 
were necessary at once, and they were taken without 
delay. A permanent librarian was employed, the supply 
of free textbooks to the students was cut off, and dupli- 
cates were supplied of such reports and other books as 
were in frequent demand and would be needed even more 
under the new method of teaching. The School's "rich 
library," said the President in his annual report to the 
Overseers, "is an indispensable aid to the student. The 
Corporation, feeling the importance of still further en- 
larging this library and improving its administration 
have, during the year 1870-71, employed a permanent 
librarian, spent about ^1200 on the shelves and other 
fittings of the room, and about ^3400 on books and bind- 
ing." But the story of the change and the mechanical 
devices by which it was aided is best told in the Dean's 
own words. In his report for 1870-71 he wrote: 

"At the beginning of the year important changes 
went into effect in regard to the law library. Prior to 
that time it had been kept together, the books being 

C97] 



arranged in alphabetical order, and there being no sys- 
tematic attempt to provide duplicates of such books as 
were in constant use. From the opening of Dane Hall 
in the morning to the closing of it in the evening the entire 
library was accessible, without restriction and without 
supervision, not merely to the members of the School, 
but to all persons. The librarian had generally been a 
member of the School, who occupied a room in Dane Hall, 
and received a trifling compensation in addition to his 
room rent and tuition. It was not any part of his duty 
to spend any of his time in the library; still less to exer- 
cise any authority or supervision over those who used it. 
The janitor had certain duties to perform in reference 
to the library; but it was not his business to exercise 
any authority or supervision over those who used it, 
nor was he expected to remain in it, except when certain 
specific duties required his presence. In fact, as the 
librarian and janitor were situated, it was out of the 
question for them to exercise a constant supervision over 
the library, and any partial supervision would have 
been useless. 

"The result of this system being found very unsatis- 
factory, it was decided to make three radical changes, 
namely: First, to require the constant attendance of the 
librarian or his assistant in the library during all the 
hours that it was open; second, to render the general 
library inaccessible except with the librarian's permis- 
sion; third, to procure duplicates of all such books as 
are in constant use, and with these to form a working 
library, to which every student should have free access. 

"During the summer vacation of 1870 these changes 
were carried into effect. A permanent librarian was 
employed, whose duty it was made to devote his whole 
time and attention to the interests of the library. The 
working library was formed in the main by taking such 
books from the general library as seemed desirable for 

[98] 



that purpose, and supplying their places with new copies. 
In this way the hbrary has been suppHed with dupli- 
cates of all the most important English reports, of the 
Massachusetts reports, of the reports of the Supreme 
Court of the United States, of all the most important 
New York reports, of the most important Digests and 
Abridgments, and of a good number of standard treatises. 
The working library has also been furnished with a good 
collection of standard works of reference. Whenever 
there is but one copy of a book, it is kept in the general 
library, except in case of mere books of reference; but 
as often as any book is found to be in sufficient demand 
to make a copy of it desirable in the working library, an 
additional copy is obtained for that purpose. The dupli- 
cates which have been purchased f r the general library, 
to supply the places of those taken out for the working 
library, have been invariably the best editions that could 
be procured, well bound and in good condition. 

"The working library is separated from the general 
library by a railing, and when books from the latter are 
wanted, they are given out by the librarian and his 
assistant, the names of the books being entered on a slip 
of paper, which is retained until the books are returned. 
When a student asks permission to go behind the railing 
to examine books, such permission is never refused when 
the librarian is present. It is proper to notice another 
important change. It had always been the practice to 
furnish every student, as a gratuitous loan, with a copy 
of every textbook used in the school. This made it nec- 
essary to purchase from one hundred to one hundred and 
fifty copies of every new textbook introduced; and as 
the works used as textbooks sometimes consisted of as 
many as three or four volumes, and as the books thus pur- 
chased were generally superseded in a few years by other 
books, or by new editions, it was found to be a great and 
constant source of expense to the school; so great, indeed, 

[99] 



that the general library had suffered severely in conse- 
quence, it being impossible, for want of funds, to supply 
its most pressing needs. This practice has been entirely 
discontinued since the beginning of the year 1870-71, so 
far as the purchase of new books is concerned ; and stu- 
dents have been left to supply themselves with such books 
as have been introduced since that time. No reason has 
been seen for doubting the wisdom of this change. There 
are obvious advantages to the student from owning the 
books which he uses as textbooks ; he can always supply 
himself with the best editions; and, as the course of study 
is now arranged, it is believed that the necessary expense 
for textbooks in the Law School is not materially greater 
than in the College proper." 

From 1870 until to-day the history of the School's 
library is writ large in the reports of the Deans of the 
School to the President and of the President to the Over- 
seers. The space given to it in both series of reports 
indicates the important place it has filled in the minds 
of the governing boards of the University and the care 
and thought that have constantly been expended on its 
development. "The Corporation," said the President, 
"recognize the fact that the library is the very heart of 
the School." "The most essential feature of the School," 
said the Dean, "that which distinguishes it most widely 
from all other schools of which I have any knowledge, is 
the library. 1 do not refer to the mere fact of our having 
a library, nor even to the more important fact of its being 
very extensive and complete ; I refer rather to the library 
as an institution, including the relation in which it stands 
to all the exercises of the School, the influence which it 
exerts directly and indirectly, and the kind and extent of 
use that is made of it by teachers and students. Every- 
thing else will admit of a substitute, or may be dispensed 
with; but without the library the School would lose its 
most important characteristics, and indeed its identity." 

C 100 ] 



The use of the library increased so rapidly that within 
two years the Dean was seriously alarmed at the "great 
wear upon the books." The only purpose of books, 
of course, is to be read, but if fifty or a hundred men, one 
after another, read and thumb the same pages in one 
volume, those pages are likely to wear out and the volume 
become imperfect and consequently the set to which it 
belongs. A whole set of books which are not in the 
market and which it is almost impossible to procure 
may be ruined by the excessive use of a single volume for 
a special purpose. The Librarian was reported to be in 
despair about it. *'It is not a large proportion of the 
books of the library," said the President, "which are being 
destroyed; but it is the books most referred to by the 
teachers, which are presumably the most valuable books 
for present use in teaching." Reprinting the worn pages 
was a costly and unsatisfactory remedy. The difficulty 
was not really solved until teachers began to print to- 
gether in one volume the cases which they expected the 
class to study. It is believed that the modern case book 
owes its birth to this purely mechanical difficulty. The 
separate publication of selected cases arranged by topics 
became a part of the Langdellian method of teaching law. 

But this device did not entirely cure the inevitable ill. 
Illustrative cases which no case book of possible dimen- 
sions could contain must still be referred to and read. 
"Since the date of my last report," said the Dean, many 
years afterwards, "it has been decided to increase the 
usefulness of the library by providing it with another 
copy of every set of English and American reports which 
is used to any considerable extent. With a view to the 
speedy accomplishment of this object, the Librarian made 
a trip to England during the last summer vacation, and, 
while there, he succeeded in purchasing, on very favor- 
able terms, 1377 volumes of English reports, making, 
with extra sets of English* reports already belonging to 

[lOl] 



the library, 1637 volumes. We have also availed our- 
selves, and are still availing ourselves, of every good oppor- 
tunity to purchase another copy of every set of American 
reports of which another copy is at all needed, and our 
purchases of such reports already amount to 508 volumes. 
When this plan has been fully accomplished, the library 
will have three copies of all the more important sets of 
English and American reports, and of several sets it will 
have four copies." 

Meanwhile the School grew steadily in fame and in 
numbers, and added steadily to its library. The collec- 
tion had now become so valuable that the authorities 
began to think of the risk of fire. Dane Hall was not 
fireproof, and in winter six or seven fires were kept burn- 
ing in the building to heat it. Of course the books and 
the students must be kept together. "There is needed, 
therefore, for the Law School," said the President as 
early as 1873, "a new building, a large part of which 
shall be fireproof." Besides, the library was uncomfort- 
ably crowded. In 1877 the evil had increased to such 
an extent that not infrequently students were unable to 
find a place to sit. In a year or two more conditions were 
almost unbearable. The Dean said: "Regarded as a 
repository for books, the accommodation afforded by 
Dane Hall is very bad in quality, and in the near future 
it will be absolutely insufficient in quantity. During 
the summer, when it is necessary to keep the windows 
open, the books suffer greatly from dust, while during 
the cold weather they suffer greatly from heat. The evil 
arising from excessive heat is greatly aggravated by the 
necessity of utilizing for the storage of books all the space 
from the floor to the ceiling. The books also suffer from 
gaslight during all seasons of the year. Again, the danger 
to the books from fire is so great as to be a cause of con- 
stant anxiety. If the library should be destroyed, it is 
probably safe to say that a hundred thousand dollars 

[102] 



would not replace it; and its value is increasing rapidly. 
Bad, however, as is the quality of the accommodation 
afforded for the storage of books, an increase in its quan- 
tity is the most immediate and pressing need of the library. 
Already the Librarian has been compelled to remove large 
quantities of books from the library into private rooms; 
and even this resource, to say nothing of its inconvenience, 
will soon be exhausted." 

A few more very uncomfortable years, and the library 
was moved, in the last weeks of September, 1882, into 
"the very handsome and commodious building which the 
School owes to the munificence of Edward Austin, Esq., 
of Boston." "It would be hard," said the President, "to 
exaggerate the advantages which the School derives from 
the possession of this admirable building. The reading 
room, which is the chief resort of the students, is a noble 
room, light, airy, and handsomely furnished; the book 
room is fireproof, well lighted, and capacious enough to 
hold the present library and the probable accessions of 
fifty years." 

All in all, the School and its library were now in a 
position of great strength. In a few years the time was 
considered ripe for a review of achievements. Of the 
library Dean Langdell wrote in 1890 to President Eliot. 

"In 1869-70 the library was so nearly a wreck that it 
required to be reconstructed almost from its foundations. 
Now it is believed to be larger (referring only to law books 
proper, and excluding statutes), more complete, and in a 
better condition than any other law library in the United 
States, with the possible exception of the national library 
at Washington. . . . Prior to 1870-71 the only persons 
employed to care for the library were a student-librarian 
and the janitor of Dane Hall. . . . Now, a permanent 
librarian, a permanent assistant librarian (both of whom 
have held their present positions for the last eighteen 
years), and three assistants are constantly employed in 

[ 103 ] 



the care and administration of the library and in other 
administrative duties. Prior to 1870-71, and subse- 
quently to the time of Professor Greenleaf, no one con- 
nected with the School took much interest in the subject 
of purchasing books for the library. The practice was 
for the booksellers with whom the School kept an account 
to send to the library a copy of every new book received 
by them; and as to each book so sent, one of the profes- 
sors decided whether it should be kept or not. As to 
the purchase of other than new books, there was no system 
whatever; and such books were seldom purchased unless 
for some special reason ; and when it was decided to pur- 
chase any such books an order for them was given to a 
bookseller. Under this practice the library seldom re- 
ceived any accessions of old books; and, even had this 
been otherwise, it would almost inevitably have hap- 
pened that most of the accessions received would repre- 
sent some person's hobby, and so would improve the 
library only in some one direction. Moreover, old books 
purchased in such a way are sure to cost two or three 
times as much as they need cost. There are thousands 
of law books without which no library is perfect, and 
which yet have no fixed market value, and which may 
be said to be more or less rare in the sense of being more 
or less difficult to find, but very few of which are rare 
in the sense of commanding a high price in the market. 
The only way, therefore, to purchase such books to ad- 
vantage is to seek opportunities of purchasing them at a 
low price, and to purchase them, as a rule, only when such 
opportunities offer. It was therefore decided, about 
seventeen years ago, that the Librarian should make it a 
part of his duty to follow up auction sales of law books 
in all the principal cities of the United States. Accord- 
ingly, on the 22d day of January, 1874, he attended an 
auction sale for the first time and purchased 36 volumes. 
. . . Prior to 1870-71 there was never, so far as is known, 

[104] 




w 






r u 



<^ 00 



any collation made of books purchased for the library 
for the purpose of ascertaining whether or not they were 
perfect. Indeed, the practice of collating books was not 
begun until January, 1874; but since that date every 
book purchased for the library, whether new or old, and 
whether purchased at private or public sale, has been 
collated, page by page, before being accepted. Soon 
afterwards the work was begun of collating, page by page, 
all the books that were in the library prior to the date 
just mentioned; and this work has since been prosecuted 
with as much rapidity as possible ; and no money has ever 
been spent in rebinding or otherwise repairing a book 
until it was first collated. . . . Prior to 1870-71 the 
library was as little cared for in respect to the binding 
and repairing of the books as in other respects. Binders 
were employed with little regard to their ability to do good 
work, and little pains were taken either to give them 
proper directions or to see that they did their work in 
accordance with such directions as were given them, or 
that they did it properly; and the results were deplorable. 
In no case was the work what would now be regarded as 
good; in many cases it was shocking in respect to the 
work done and the materials employed; and in many 
other cases books were actually ruined by the binder. 
Since 1870-71 the most strenuous efforts have been made 
to improve the administration of the library in respect 
to the binding and repairing of books; and, though the 
success of these efforts has not been all that could be 
desired, yet it has upon the whole been gratifying; for 
the library may now safely challenge comparison in 
respect to its condition with any other law library in 
the United States. . . ." 

Welcome as the extraordinary growth of the School 
was, it brought with it serious mechanical difficulties 
in administration. "When Austin Hall was erected," 
wrote the Dean in 1891, "it was expected to furnish ample 

C105] 



accommodation for all the students who would seek 
admission to the School during the next fifty years. Only 
eight of those fifty years have now passed, and yet the 
building is already outgrown. . . . Nothing short of an 
additional building and an additional library will make 
it practicable for the School to furnish suitable accommo- 
dations for a larger number of students than it now has." 
For the moment, however, the reading room was enlarged 
by adding to it a space theretofore little used. "The 
library and reading room," said the President, "consti- 
tute the sole laboratory which the Law School needs; 
and it is the intention of the Faculty to keep that 
one laboratory in the most serviceable condition pos- 
sible." 

It was no light task to carry out this intention. In 
1900 the President reported that the "library is growing, 
and threatens to continue to grow, at the rate of more 
than 6000 volumes a year. An immediate enlargement 
of the building is imperatively demanded; and in plan- 
ning that enlargement it seems to be necessary to look 
forward to a law library of more than 100,000 volumes 
within ten years." (Jt is an interesting fact that ten 
years later the library contained 120,600 volumes and 
i3>390 pamphlets.) In 1901 Dean Ames reported that 
"the School has been enlarging its library at a rapid rate; 
and by the end of the current year, the shelving in the 
present building will be filled. As there is no reason 
why the School should not spend $12,000 a year on books, 
and as books are the sole apparatus required by a law 
school, the expediency of providing immediately more 
shelving on which to place the accessions is obvious. 
The chief distinction of the Harvard Law School — after 
its professors — is its admirable library." As a tempo- 
rary expedient, the overflow of the library was stored 
in a building abandoned by the Lawrence Scientific 
School, and in the cellar of Hastings, "to the inconven- 

[106] 



ience of the reader, and at the disquieting risk of the de- 
struction of the books." 

Finally, the crowding in Austin Hall was no longer to 
be borne. The Corporation did not think fit to provide 
more accommodations out of the general funds, and the 
money to build Langdell was taken from the surplus that 
the School had accumulated, the income of which it was 
spending annually on its library. In the fall of 1907 the 
Dean announced the completion of the new building, and 
prophesied that Austin and Langdell "will, for a dozen 
years at least, give dignified, attractive, and ample 
accommodations for all the needs of the School." Dying 
three years later, Mr. Ames did not live to see that the 
extraordinary increase of the School in numbers was likely 
again to shorten the term of ease prophesied by those 
who had carried through an enlargement of the physical 
plant. 

Since the practical disappearance of income through 
interest on the surplus, the library has had a number of 
opportunities materially to increase its usefulness. Some 
of them, even some of very high importance, as, for 
example, the purchase of the great criminological library 
of Sellier, were necessarily missed, but in the years be- 
tween 191 1 and 1914 at least four were embraced, each 
of which was thought to justify a draft on the principal 
of the small remaining surplus. In one instance, the 
purchase was made possible by a private subscription, 
raised hastily among well-wishers of the School. 

In 191 1 the library acquired the remarkable collection 
of Bar Association Proceedings which had been made by 
Francis Rawle, Esq., of Philadelphia, believed to be the 
only complete collection of State Bar Association Pro- 
ceedings in existence, necessary apparatus for a study of 
the development of law and legal thought in America. 

In 191 2 there came a sudden chance to buy the great 
international law library of the Marquis de Olivart. 

[107] 



The catalogue of this collection is constantly referred to 
in recent treatises on the subject as the standard bibliog- 
raphy of international law. ''It purports to note only 
works in the author's own library," says Sir Frederick 
Pollock, "but we know of nothing approaching it in 
completeness." The Faculty was impressed by the 
fleeting opportunity, and felt justified in expending in 
the purchase a considerable part of the small surplus 
that remained. 

In 191 3 was offered for sale another library of high, 
though very different importance, the fruit of a lifetime 
of diligent and intelligent collecting of the manuscripts 
and printed books wherein the growth of the Common 
Law may be followed back as far as written record exists. 
It was the last considerable collection of such material 
remaining in private hands. By the generous aid of the 
School's alumni and friends, it was made possible for the 
library to purchase the Dunn collection en bloc. Before 
this purchase, the School possessed the greatest collec- 
tion of early English law books in this country; it has 
now placed itself, as has been said, "far beyond the possi- 
bility of rivalry." Perhaps the total number of Year 
Books printed was not more than four hundred and fifty; 
of these the School had two hundred and seventy before 
the Dunn purchase, and after it three hundred and twelve, 
many more than are in the British Museum, its nearest 
competitor. 

In 1914 the School purchased a very large collection 
of material from South America. Dean Thayer wrote to 
the President: "There appears to be no considerable 
collection in this country of the laws, decisions and doc- 
trinal legal writings of the southern republics, unless 
perhaps at the Library of Congress. Yet in the process 
of time these countries seem likely to play a very large 
part in our commercial and, perchance, in our political 
life. As we grow more intimate with them, we shall 

[108] 



need more and more to know something of their legal 
history and everything of their present legal status. For 
some years attempts have been made from a distance 
to acquire for the School the materials whence this knowl- 
edge might be drawn, but the results have been frag- 
mentary. In the spring of 191 3, however, a chance came 
to take advantage of the journey to South America on a 
book-hunting mission of the librarian of a sister institu- 
tion, the skilled buyer through whom the School acquired 
the Olivart Collection, a man singularly well endowed and 
trained for the work he was undertaking. Dr. Lichten- 
stein has now been in South America for a year, and he 
and his principals are well satisfied with his success. He 
has visited all the republics and has bought for the School 
complete, or nearly complete, collections of their legisla- 
tion, the reports of their courts, and the works of their 
great legal writers." 

It should be interesting at this point to see how the 
library of the School, after its varying fortunes through 
the last hundred years, and in view of the somewhat com- 
placent praise which has at times been its portion, com- 
pares to-day with the libraries of other law schools and 
with other law libraries in general. The measure of 
value of a library is not the number of books it contains, 
but the class of readers it serves and its ability to satisfy 
their needs. Nevertheless, number of volumes is an 
easy test, though unless the books be carefully selected, 
most fallible; moreover, it is the only test for which 
statistics are available. 

In 191 2 the Law Library Journal published a list of 
well over five hundred law libraries and law departments 
of libraries in the United States and Canada, with a 
statement of the number of volumes in each. The 
Harvard Law School, with 150,000 volumes, contained 
approximately three times as many as the library of the 
school nearest it; four bar association libraries contained 

[109] 



over 50,000 volumes each, the largest of them nearly 
94,000; the law library of Congress and the Supreme 
Court contained 145,000 volumes. Measured, then, by 
this admittedly superficial standard, the library of the 
School is approached in America only by the library of 
Congress. As to England, Dicey, writing for the Con- 
temporary Review in 1899 on the teaching of English 
Law at Harvard, had said of the library, *'It consti- 
tutes the most perfect collection of the legal records of 
the English people to be found in any part of the English- 
speaking world. We possess nothing like it in England. 
In the library at Harvard you will find the works of every 
English and American writer on law; there stand not only 
all the American reports — and these include, as well as 
the reports of the Federal courts, reports from every one 
of the forty-five states of the Union — but also complete 
collections of our English reports, of our English statutes, 
and of the reports and statutes of England's colonies and 
possessions. Neither in London nor in Oxford, neither 
at the Privy Council nor at the Colonial office, can 
one find a complete collection, either of American or 
even, astounding as the fact sounds, of our Colonial 
reports." 

A better idea of what the library of the School contains, 
so far as figures throw light upon the matter, may be 
gathered from the results of a count of the books upon 
the shelves made for a special purpose in April, 19 16. 
The books are so arranged in the library that they could 
without much difficulty be counted in classes. Pam- 
phlets, of which the library contains some 20,000, were not 
counted, except in a few instances where they were wait- 
ing to be bound, when they were counted as if bound. 
The results of the count are shown in the following 
table, which is believed to be as accurate as such figures 
can be. 

[no] 



Of These 

Total Dupli- 

Vols. cates 
Reports, digests, guides to cases, etc. 

American 32908 19560 

British 13063 6526 

Canadian and other British Colonial 3337 12 

Statutes, codes, session laws, etc. 

American 6365 271 

British 1854 309 

Canadian and other British Colonial 3305 226 

Textbooks and treatises upon English and American 
law (including Law Dictionaries, Encyclopae- 
dias, and case books) 26805 6261 

Roman and foreign law 47442 1786 

International law 14876 1200 

Periodicals, including Bar Association reports 5914 1580 

Records and briefs 4236 o 

Legislative journals, and other government docu- 
ments not included in above classes 2338 22 

Miscellaneous 2377 177 

Reports of Attorneys-General 208 o 

Reports of Public Utility Commissions 838 157 

Trials 4265 400 

City and Town Ordinances and By Laws 1498 60 

Total 171629 38555 

The library of to-day has been made possible only by 
the constant help of its friends. Sometimes they have 
given money — more often they have given collections 
of books. To name only those who have given most is 
to call a considerable roll of benefactors. John Howe's 
gift of $100 already mentioned does not look large beside 
the sum of ^10,000 contributed by the friends of the School 
toward the purchase of the Dunn books, but it should be 
compared with the whole amount appropriated by the 
Corporation to the library during the first decade of its 
existence. Sometimes, as B. R. Curtis did in 1874, an 
instructor has remitted his fee with directions that it be 
applied to the purchase of books on his subject. Occa- 
sionally others have seen special needs and given to the 

Cm] 



library funds wherewith to meet them. In 1882 friends 
and alumni of the School subscribed, in sums of from ^5 
to ^25,000, a fund of over ^47,000, the income to be de- 
voted to the purchase of books, and the income from this 
fund forms an important part of the library's spending 
money to-day. The gift of ^10,000 for the Dunn purchase 
has been mentioned in passing. In 1914 the late John L. 
Cadwalader bequeathed ^20,000 to the Corporation for 
the purchase of books for the library of the Law School, 
a most opportune addition to the library's small endow- 
ment. As to books, the gifts of Christopher Gore in the 
first decade and the bequest by Samuel Livermore of his 
noble library of "works on the Roman, Spanish, and 
French Law" have been mentioned in their place. In- 
dividuals gave individual books from time to time after 
the Livermore bequest, but no further notable gift of 
books was received until in 1903 Mr. Edward James 
Drifton Coxe gave to the School the law library of his 
father, the late Brinton Coxe, consisting of 3225 volumes 
and 92 pamphlets and containing many rare volumes of 
English, American, Roman and Canon Law, together with 
a nearly complete set of the decisions of the Rota Romana. 
About the same time Mr. Learned Hand, now Judge 
Hand, gave 142 1 volumes from the library of his father, 
the late Samuel Hand, Associate Judge of the Court of 
Appeals of New York. (To this gift Judge Hand added 
almost as many more volumes in 19 15.) Another gift 
of very high importance was received some months after- 
wards. The late Mr. Justice Gray had, since he had gone 
to Washington, kept the printed records of cases decided 
by the Supreme Court of the United States. These 
his widow now presented to the School. They were 
bound up in 1300 large volumes. This particularly 
valuable set is kept up through the kindness of Mr. Jus- 
tice Holmes. In 1905, by the will of the late James M. 
Barnard, subject to the approval of Mrs. Barnard, the 

[112] 



library received his law books and portraits of lawyers. 
An additional gift of ^2000 for the purchase of books, 
preferably works on International Law, was made 
by Mrs. Barnard. About the same time some very 
early and valuable Pennsylvania Laws were presented 
by Dean Ames, who had a habit of giving to the 
School whatever of value belonged to him, and Mrs. 
Langdell gave ninety volumes of important and valu- 
able early English Reports which had been deposited 
for many years in the library by the late Professor 
Langdell. 

But not even the fostering care of the governing boards 
and the help of its friends could have raised the library 
to its present position of primacy among the law libraries 
of the world without the steady care, the boundless devo- 
tion, and the wise insight of its Librarian, John H. Arnold, 
now its Librarian Emeritus. Announcing Mr. Arnold's 
resignation in 191 3, Dean Thayer said: "Mr. Arnold was 
appointed Librarian in August, 1872, and his term of 
more than forty years' service thus included almost all 
Mr. Langdell's term as Dean, and the whole of Mr. 
Ames's. In the history of the School his name will always 
be linked with theirs. Working in the closest cooperation 
with them, and like them utterly devoted to the interests 
of the School, he did so much to build up the present 
library that it stands to-day as a monument to him. When 
he took office it contained less than 10,000 volumes; 
before he retired it had grown to a total of over 150,000. 
These figures, impressive as they are, leave much of the 
story untold, for they tell nothing of Mr. Arnold's achieve- 
ments in securing books cheaply betore the development 
of a demand which greatly increased their value. He 
early acquired an unique knowledge of the opportunities 
for buying English and American law books; and to 
unceasing vigilance he added a singular wisdom in fore- 
casting the future. As a result the library has to thank 

[113] 



him for very many valuable books obtained at prices which 
to-day are hard to believe." 

It were tedious now to describe in more detail the com- 
ponent parts of this great collection of books, or to dwell 
longer on the steps by which the Harvard law library 
has attained its admitted rank in its field, a rank which 
brings with it grave responsibilities. The law of life is 
growth or decay, a truth particularly well illustrated in 
the life of a collection of books. Shall the maturity of 
our library fulfil the promise of its youth.? The future 
beckons. Unfortunately the library has not to-day re- 
sources enough to meet that future confidently. It may 
be interesting to examine the situation more particularly. 

In reporting in 1900 the retirement of Professor Lang- 
dell from the law faculty, Dean Ames had said: **When 
he came to Cambridge thirty years ago he found here the 
wreck of a library. He leaves the library without a peer 
among the law libraries of the world." In truth, appara- 
tus for the ordinary study of the law, including, where 
necessary, duplicate copies of much used books, was pretty 
well supplied. Much, however, remained to be done. 
For example, the collection of the laws passed by the 
various legislatures of the United States since the Revolu- 
tion was good, was even very good, but a considerable 
number of the rarer sessions were still lacking. Com- 
pleteness in a collection of this sort is in the highest degree 
desirable, but of course the more nearly completeness is 
attained the more expensive and difficult, relatively, be- 
comes each step forward. The legislation of the American 
colonies also is of great importance to a library that pre- 
tends to furnish materials for a complete understanding 
of the history of the law in America. The original ses- 
sions are, however, so rare and command so high a price 
that the School cannot, under ordinary circumstances, 
afford to compete for them. Nevertheless, the library 
is in a position to know of occasional opportunities for 

[114] 



the acquisition of this valuable material at comparatively 
reasonable prices, and it is unfortunate that such oppor- 
tunities must at present be passed by. They are not likely 
to recur, or they will recur only with diminishing fre- 
quency and at ever increasing cost, for other institutions 
are in the field and are eager buyers. It is particularly 
unfortunate that the Harvard Law School must let such 
opportunities slip, for it is clearly not to the general good 
that material of this sort should be scattered instead of 
being added to the already large collection in the School's 
possession. 

Moreover, while the School was earning a comfortable 
surplus year by year, the Faculty felt authorized in acting 
on their conviction that the law could be best taught only 
in a place where its history, philosophy and content might 
be thoroughly studied and made known. They realized 
that the law was properly to be regarded as "a great 
anthropological document," and so regarding it, they de- 
sired that the library of their School might show the man- 
ner of development of legal institutions wherever the race 
had reached an ordered life. Taken as a counsel of per- 
fection, this meant collecting the laws of all civilized com- 
munities and the opinions of judges and commentators 
upon them from the beginning, as well as the books that 
revealed what had been thought about the law and its 
philosophy from age to age. Short of attaining this 
counsel of perfection, the Faculty felt sure that a well or- 
dered law library should contain "an adequate represen- 
tation of all existing legal systems, having due regard to 
their respective practical importance." They hoped to 
develop the library into a home for persons interested in 
comparative jurisprudence, a common meeting ground 
for teachers and students (or, better, because all are 
students, for those whose paths were the higher walks of 
jurisprudence and for the students of every day) where 
each class might benefit by the other's labors. The busi- 

C115] 



ness of their School, the Faculty felt, was not merely to 
teach law and to make lawyers, but, as one of the most 
inspired of its pupils has said, "to teach law in the grand 
manner and to make great lawyers." "The aim of a law 
school should be," said Judge Holmes, "the aim of the 
Harvard Law School has been, not to make men smart, 
but to make them wise in their calling, — to start them 
on a road which will lead them to the abode of the mas- 
ters. . . . For whatever reason, the Professors of this 
School have said to themselves more definitely than ever 
before, *We will not be contented to send forth students 
with nothing but a rag-bag full of general principles, — 
a throng of glittering generalities, like a swarm of little 
bodiless cherubs fluttering at the top of one of Correggio's 
pictures.' They have said that to make a general princi- 
ple worth anything you must give it a body; you must 
show in what way and how far it would be applied actually 
in an actual system; you must show how it has gradually 
emerged as the felt reconciliation of concrete instances, 
no one of which established it in terms. Finally, you 
must show its historic relations to other principles, often 
of very different date and origin, and thus set it in the 
perspective without which its proportions will never be 
truly judged." "It is perfectly proper," Judge Holmes 
has said in another place, " to regard and study the law 
simply as a great anthropological document. It is proper 
to resort to it to discover what ideals of society have 
been strong enough to reach that final form of expression 
or what have been the changes in dominant ideals from 
century to century." 

Perhaps it is not difficult to scoff at this plan of study. 
One may sincerely believe that the young man under- 
taking to learn the practical profession of the law, through 
which he is to earn his daily bread, should not be distracted 
by much talk of the history and philosophy of the matter. 
In a sense this is true. But those who are to guide his 

[ii6] 



steps should certainly have a large view of the country 
through which they are to travel together. Perhaps 
together they may build new roads. At any rate, for 
law teachers, present and future, no opportunity to gain 
knowledge of the law as it has existed in any time or 
place, and of the manner of its development, can be 
called superfluous. The Harvard Law School would 
fain continue to train teachers. It has not only the 
intellectual needs of its own Faculty to satisfy, but 
it craves ability to satisfy the desire for learning of many 
of its own keener pupils and of those who come to its 
fourth year course from other institutions, that they too 
may thereafter impart what, they have learned. The 
School wishes to satisfy the longing for productive re- 
search that has taken possession of so many scholars in 
these days when the old law is giving place so rapidly to 
new. The Faculty believes that "a general view of the 
law, its function, resources and limitations, is indispen- 
sable for a sound administration of justice, the end for 
which law and law schools exist." As the courts become 
more and more crowded with business, the judges have 
less and less time for full examination of the cases be- 
fore them and they necessarily turn with increasing fre- 
quency and increasing reliance to the unhurried work of 
the legal scholar. The School aims to satisfy this demand 
for the work of the legal scholar and desires to make its 
library a fit instrument for his training, and to keep it 
such an instrument. 

Incidentally, the collection of the legal literature of 
other countries than England and America has had its 
advantages for actual practice. With improvements in 
exchange and transportation, the mere business need of 
the United States to know the laws of its neighbors in 
the world has increased vastly and is increasing with 
ever greater rapidity. Recently the course of justice in 
parts of our country as far from each other as Montana 

C117] 



and Maine has been aided by counsel who have applied 
to the Harvard Law School for their authorities, in one 
case for an Austrian statute of many years ago concerning 
promissory notes, in the other for the provisions of the 
Italian Civil Code concerning a point in the law of wills, 
with the subsequent session laws. This is such service 
as Harvard should give. It is such service as it gave so 
long ago as 1844 when the great case of Vidal v. Girard 
was decided in part on the authority of a then very recent 
opinion of Lord Chancellor Sugden, which the judge who 
spoke for the court had seen in the library of the School, 
there being at that time no copy of the Irish report con- 
taining it in Philadelphia, where counsel for the successful 
party lived, or in Washington, where the court sat. 

There is at least one more kind of work that the Library 
should undertake but which it cannot think of performing 
with its present income. An author catalogue of its 
books on the American and English Common Law was 
published in two volumes eight years ago. Since then 
more than fifty thousand volumes have been added to 
the library, the larger part of them, of course, within this 
field. The slugs used in the 1909 catalogue have been 
preserved, so that it should not be a difficult matter to 
issue a second edition. This, however, is work that will 
not pay for itself and the library has no funds with 
which to undertake it. A subject catalogue of the same 
books has been kept on manila slips, ready for the printer, 
but there is no money to publish it. A catalogue of the 
Dunn collection, to which many items were added from 
the books already here, would give a fair idea of the Eng- 
lish law books printed before 1600; indeed, such a cata- 
logue might be enlarged to include mention of known 
books that are not here. No catalogue of the books on 
foreign law in the library, now numbering between 45,000 
and 50,000, has ever been published, although both 
author and subject slips have been prepared as the books 

C118] 



were acquired, ready after some revision for the printer if 
funds for publication were at hand. It is the duty of 
a great Hbrary to supply these bibliographic aids to the 
world, but this duty must for the present be neglected. 

Although, when Langdell Hall was built, the Faculty 
cherished these higher ideals of service, it was plain that 
the School must somehow meet the demands for shelter 
of the young men who thronged its gates, and these de- 
mands could no longer be met without a new building. 
If the only way to get the building was through sacrifice 
of the higher ideals which the School had formed, the 
pursuit of those ideals must be left to some other 
institution better endowed with the means to procure the 
necessary tools. So Langdell Hall was built, and the 
School's surplus was mainly spent in the undertaking. 
In 1906 interest on the surplus had amounted to over 
$15,000; in 1908 it was less than $2500 and the average 
yearly return since has been smaller than that. Latterly, 
as the amount required for the maintenance and opera- 
tion of the physical plant has steadily increased, the 
expenditure for books has steadily decreased. Thus, in 
191 2-1 3, the amount expended for books (excluding 
$10,000 given to assist in purchasing the Dunn library) 
was $26,997; in 1913-14 it was $18,495; in 1914-15 it 
was $15,349, and in 1915-16 it had fallen to $13,588. 
Such parsimony in the library is at present necessary if 
the School is to keep a safe margin of income over ex- 
penditure. But parsimony can go little further. The 
expenses of the library cannot grow materially less. In- 
deed, even if the library give over its attempt to bring to 
completeness some of its more important collections, e.g., 
its collection of American statute law, and forego its desire 
to furnish investigators and future teachers with the 
materials for the study of comparative law, the expenses 
of the library must nevertheless constantly tend to in- 
crease. If the School is to keep its preeminence in 

[119] 



English and American law, old serials cannot, save in 
exceptional instances, be dropped, and new continuations 
must be added from time to time. New courts whose 
decisions are reported and cited appear constantly. It 
would be unfortunate if the School must pass them by 
and be forced to confess, at the last, that even in English 
and American reports its library is less than complete. 

Speaking of this matter in 1913, and of the library's 
"position of primacy among the law libraries of the 
world," Dean Thayer said: "Through this position come 
heavy responsibilities. The larger a law library is, the 
faster it must grow. Old serials must in general be kept, 
up, and new serials must be constantly added. What 
may be called the fixed expense thus inevitably tends to in- 
crease. Obviously the library should be sure of funds to 
meet this fixed expense. Moreover, if it is to take full 
advantage of its opportunities, it sorely needs a fund large 
enough amply to supply what may be called working capi- 
tal. Much of the value of the Olivart collection is due 
to the activity of the Marquis de Olivart in keeping 
abreast of the times, and adding, at relatively slight 
expense, contemporary matter which might soon become 
costly or not even obtainable. His successor is under a 
moral obligation to continue that policy; but it is a policy 
which, here as elsewhere, calls for sums which current in- 
come cannot be expected to supply, so long as the School 
adheres to the policy, from which it cannot think of de- 
parting, of considering standards only and not numbers. 
The endowment of the library is to-day insufficient to 
meet even its fixed expense, to say nothing of the supply 
of working capital. That the library should continue 
largely dependent on necessarily fluctuating tuition fees 
is a matter of grave concern." 

Further, if the library is to continue to live the vigilant 
life it has usually lived heretofore, it must also grow 
rapidly in new directions. A later chapter shows how 

[120] 



the creation of a great body of law outside the courts 
through administrative boards, and the increasing con- 
nection between law and other social sciences, are making 
new demands upon legal education. These demands 
must be met by books as well as by teachers. Oppor- 
tunity knocks at the door of the Harvard Law School. 
The efforts making to open the door are explained in 
another place; the present question is, shall the door lead 
into well-furnished apartments.? It is a commonplace 
that the lawyer is dependent upon books as no other crafts- 
man. A great literature about these new aspects of the 
law has already grown up. To name one branch of it 
only, the printed reports of the various transportation 
commissions whose decisions are law and whose annual 
reports, if not law, contain the stuff whereof the law is 
made, probably number well over a thousand volumes. 
Modern developments cannot be understood and cannot 
be guided without access to this literature. The School 
must collect it at whatever expense of time, money, and 
space. Much has been collected, but there should be no 
pause. And after all, the reports of the transportation 
commissions are only an example of the new demands in 
this kind that are made upon the library and that must 
be met if the library is to continue to be a good workshop, 
the best of workshops, we like to think, for the training 
of the mechanics who have our future in their hands. 

The conclusion is inevitable that the library should 
be adequately endowed, and soon. Otherwise it must 
forego all its more generous aims ; indeed, it cannot long 
continue to fulfil, even tolerably well, the purposes of its 
existence. 



[121] 



CHAPTER IV 

PORTRAITS AND PRINTS 

THE School is fortunate in possessing a large number 
of portraits and prints which convey to the stu- 
dents the personality of past teachers, judges, and lawyers 
more vividly than printed books. The paintings cannot, 
it is true, offer any Copleys or Stuarts like those in Memo- 
rial Hall and the College Library, but they include one 
pre-revolutionary portrait, several good examples of 
the early nineteenth-century artists, and work by lead- 
ing men of our own time. Still more noteworthy are 
the color prints and engravings, over a thousand in 
number. Harvard Law School has, so far as can be 
ascertained, a larger collection of engraved portraits 
of judges and lawyers than exists anywhere else in the 
world. 

The portraits of the founders of the School and the older 
teachers, before the introduction of the case system, are 
hung in Austin library. Perhaps the most interesting is 
the large group of Isaac Royall and his family, painted in 
1741 by Robert Feke of Newport (1705-1750), an 
American primitive whose works are very scarce. This 
is the earliest of his portraits known to exist which 
can be definitely dated. Feke was a sailor in early 
life, and received his artistic training while a prisoner 
in Spain. Near Royall is Nathan Dane, and just be- 
yond him Asahel Stearns. The head of Joseph Story 
is by William Page (1811-1885), who, oddly enough, 

[122] 



began life in a law office, but became a pupil of Samuel 
F. B. Morse and did some remarkable work. Simon 
Greenleaf was painted in London by G. P. A. Healy 
(i 8 1 3-1 894), whose portraits were so numerous that he 
lost count of them himself. He probably painted more 
distinguished sitters than any of his contemporaries, but 
his work is not considered so good as that of Page, Har- 
ding, and Jarvis. The three great teachers of the Civil 
War period — Parker, Washburn, and Parsons — have been 
placed side by side near the entrance of the library. 
Besides men connected with the School, the room con- 
tains a full-length of Webster, by Joseph Ames of Boston, 
and another of Marshall, by Chester Harding (i 792-1 866). 
Harding was a backwoodsman, six feet three inches tall, 
who entered art by way of house and sign painting. One 
day he attempted a portrait of his wife with his sign- 
painter's materials, and was so delighted with the result 
that he started for Paris, Kentucky, set up as a portrait 
painter, and in six months executed nearly a hundred 
heads at twenty-five dollars each. During his career 
he portrayed most of the leaders of the country, from 
Daniel Boone to General Sherman. The head of Story 
in Austin North is also by Harding. At the end of the 
library is a full-length of Rutherford B. Hayes of the Class 
of 1845, by William M. Chase (1849-1916). The finest 
portrait in the room is of Henry Wheaton, by John Wesley 
Jarvis (1780-1834), who started as an engraver and maker 
of silhouettes, and became an erratic painter famed as a 
diner-out and teller of amusing stories. A Bohemian 
and fond of notoriety, Jarvis "wore a long, fur-trimmed 
coat, and a couple of huge dogs followed him, sometimes 
carrying his market basket. To his southern friends, 
when they passed through New York, he showed a 
lavish hospitality — banquets where all fluids were 
obtainable save water, where canvas-backs were eaten 
with broken-handled knives and one-tined forks, and 

C 123 ] 



the soap was thrown out of the shaving mug to furnish 
an extra glass/* Much of his work possesses an elusive 
quality, envied by his contemporaries and even by 
later artists, and the youthful Wheaton is full of vigor 
and promise, more alive than any other figure on the 
walls of Austin. 

The portraits of the teachers under the case system 
hang in Langdell library. Those of Christopher C. 
Langdell, Jeremiah Smith, and John C. Gray are by 
Frederic P. Vinton (b. 1846), and given by the Harvard 
Law School Association; that of Langdell is considered 
especially good. James Barr Ames and James Bradley 
Thayer were painted by Robert Wilton Lockwood (b. 
1 861). The portrait of Ames was presented by students 
of the School during the years 1 902-1903, and that of 
Thayer by his pupils. There is also a portrait of Thayer 
by his nephew, Simmons, in Austin West. The portrait 
of John H. Arnold, the librarian emeritus, by E. C. Tar- 
bell, is a gift from the Harvard Law School Association, 
which, in the words of Dean Thayer, "has doubly en- 
riched the School by a work of artistic excellence and a 
skillful likeness of one to whom it owes a large debt of 
gratitude." Ezra Ripley Thayer himself is beside his 
father, as he would have wished, bringing to mind his 
frequent thought that he was carrying on his father's 
work. This painting is by L M. Gaugengigl (b. 1855), 
and is a replica of one in the possession of Mrs. Thayer. 
It was presented to the School by five friends of Dean 
Thayer: William Rand, Jr., William H. Dunbar, William 
G. Thompson, George R. Nutter, and Charles E. Shat- 
tuck. Those who knew Mr. Thayer receive the imme- 
diate impression that the man himself is once more before 
them. 

In addition to the oil portraits of its teachers, the 
School possesses etchings of John C. Gray and Samuel 
Williston, and several engravings of Story. These are 

[124] 



hung in Langdell South. An excellent photograph of 
Dean Ames, given by his family, is placed at the head of 
the stairway, where it is seen by all who enter Langdell 
Reading Room. 

Mention should also be made of the oil portrait of Sir 
Edward Coke in the Cartoon Room, a copy from the 
painting in the Inner Temple, and of an admirable repre- 
sentation of Lord Chief Justice Holt by Sir Godfrey 
Kneller, now hung in the Reading Room. Besides its 
intrinsic importance, this picture is interesting because 
it was bought with a legacy to Jeremiah Smith from his 
friend Mr. Justice Charles Allen of the Supreme Judicial 
Court of Massachusetts, which Judge Smith generously 
presented to the Law School. 

Besides its oil paintings the School has a remarkable 
collection of prints, interesting for their artistic qualities 
as well as for their legal associations. They are dis- 
tributed through the various lecture rooms, but a card 
catalogue is kept in Langdell Reading Room indexing 
each print by the name of the subject or person portrayed, 
and indicating in what room it is hung. 

Austin North contains portraits of Judges of the King's 
Bench, including the Bartolozzi Mansfield after Reynolds. 
Other Common Law Judges are placed in Austin West, 
while Austin East is used for the Scotch, Irish, and 
Colonial bench and bar. This room contains amusing 
prints of Scotch advocates and an autographed letter 
from Daniel Webster. Readers of Stevenson's "Weir of 
Hermiston " will find here an engraving of the hanging 
judge, Robert MacQueen, Lord Braxfield, whose habit 
it was, when consulted as to the advisability of a criminal 
prosecution, to say, "Bring me the prisoners, and I will 
find you the law." 

Langdell Center is given over to the Chancellors, some in 
red outline by Bartolozzi after Holbein, Nottingham and 
Bridgman in woodcuts, and others in steel engravings. 

[I2S] 



Over the door hang two writs of the time of Charles II 
and George II. 

In Langdell South are American judges and lawyers, 
with several etchings of Lincoln, interesting prints of 
Webster, Judah P. Benjamin in the wig of an English 
barrister, and a very good etching of Wheaton made much 
later than the portrait by Jarvis. In this room are 
also hung a letter from John C. Gray on his retirement 
from teaching, Nathan Dane's appointment by Samuel 
Adams as Judge of the Court of Common Pleas of Essex 
County, Massachusetts, Fillmore's appointment of Ben- 
jamin R. Curtis of the class of 1832 as Associate Justice 
of the United States Supreme Court, and a trial memo- 
randum in Lincoln's handwriting. 

The walls of Langdell North are perhaps the most in- 
teresting of all. Here, besides engravings of many Eng- 
lish lawyers, including Jeremy Bentham, who never tried 
but one case, and on losing that decided to remake the 
law — and did it, are etchings of the Temple and other 
Inns, colored prints of the old English courts and prisons, 
"The Country Attorney and his Clients" by Walker after 
Holbein, John Wilkes, flanked by two associates, and 
many other large engravings, such as the trials of Queen 
Caroline and Bainbridge, the Warden of Newgate, accused 
of cruelty to the prisoners. 

Upstairs, off the Reading Room, is the delightful Car- 
toon Room, full of over three hundred caricatures from 
"Vanity Fair" of English judges and statesmen, as well 
as several Americans, including John Hay, and Charles 
Sumner of the class of 1834, who is entitled "The Mas- 
sive Grievance." 

Already a great storehouse of prints, the Law School 
ought to become in time a gallery of Anglo-American 
legal history. Much remains to be done, however, be- 
fore this purpose approaches fulfilment. In some fields 
little has as yet been accomplished — for example, auto- 

C126] 



graphs. The American portion of the present collection 
is markedly inferior to the English, and there is oppor- 
tunity for the addition of portraits, views, and documents, 
which will serve as a continuous illustration of the devel- 
opment of American law. 



C 127] 



CHAPTER V 

THE STUDENTS 

A CLIMB up the stairs of Langdell Hall; step 
through the library to the Secretary's office; 
the unrolling of a college diploma; a signature on a 
student card, — and the college boy starts to be the 

Activities professional man. 

*'An exaggeration, to be sure. The law student, like 
the law itself, develops slowly. But occasionally, as in 
a decision of Lord Mansfield, the law bounds ahead re- 
gardless of precedent. Comparable to this is the effect 
upon the entering student of registration in Harvard 
Law School. Within a few weeks former mental habits 
of leisurely college days are effaced. He soon acquires 
a deep seriousness of purpose, a live intellectual curiosity, 
something entirely different from his past experience in 
the art of being educated. 

"This prevailing spirit of work is the very gist of the 
Law School, and merits first notice in a discussion of the 
School as it appears to-day from the student's viewpoint. 
Everything else in his life at Cambridge is corollary, and 
few escape its grasp from the very start. 

"Why does the Law School possess this faculty of 
making its students, for the first time in most of their 
lives, really desire to study, and what is more, be proud 
of that desire.? The causes are many. In spite of a 
perhaps all too utilitarian undergraduate course, the 
student now finds for the first time something of definite 

[128] 




C <U 

-o — 

W O 
= C 






o-S 



c 



0^ O 






use to his future professional life. The joy of competi- 
tion with some of the best graduates of one hundred and 
forty different colleges whets an appetite already sharp- 
ened by the fear of the approaching Ides of August, when 
report slips will drop from the ranks approximately 
one-third of the class who were not hungry enough, or 
who had not capacity enough, for study. Added to these 
causes is the social force of the tradition of the School. 
Somehow or other, studying is and always has been the 
thing to do. It is strictly comme il faut, as athletics, 
fraternities, or what not, were at college. 

"While all these factors may contribute to produce 
the electrifying Harvard Law School atmosphere, the 
crowning cause is the law itself. For although, as old 
Lord Coke used to say on the title page of Ames' Cases 
on Pleading, the law may be a ^jealous mistress,' her 
jealousy need not often be aroused. The law is a very 
attractive person, 'as she is taught' at Harvard, intro- 
duced to the student by professors who command his 
highest respect and clad in the very latest of case-system 
garbs. He sticks to the law for long hours at a time from 
sheer enjoyment of her company. 

"Indeed, the Law School acts in personam. It affects 
the conscience of the entering student. The result 
must be amazing to one who, after listening to contem- 
porary critics, pictures the American college student as 
irresponsible and rah-rah, a spendthrift of opportunity 
and patrimony. The Harvard Law School is different. 
Its students, not content with the allotted lecture hour, 
usually pick the very bones of what, to the outsider, 
might seem a dry and already thoroughly masticated 
legal morsel, by congregating about the lecturer's desk 
in large numbers, asking questions, and arguing well into 
the next period. Outside the law buildings not only 
are the workers' backs occupied with carrying to and fro 
green bags stuffed with books, but their minds and tongues 

[129] 



are busy arguing and talking law points with fellow class- 
mates. That center of persiflage, the college dining table, 
has given way to a prandial and post-prandlal forum, 
where 'pass the bread' Is smothered In questions about 
what the Dean said In the last lecture and disagreements 
as to why the House of Lords was wrong In some case 
just studied. The School Is a veritable teachers' paradise 
in which discipline consists solely in advising the student 
not to work so hard. A School of 'grinds,' the outsider 
may contemptuously remark. Not so. The work, while 
serious, is not of the drudgery type depicted in the cur- 
rent antl-chlld-labor cartoons. On the contrary, it is 
set to a cheerful and lively tempo. 

"There Is no doubt that the law man at the School 
to-day works, but how does he work and what are his 
methods .f" How does the case system seem from his 
viewpoint.? He is little interested in its scientific char- 
acter or its pedagogical value. That is the view of the 
landlords of the system. He is the invitee upon the case- 
system premises, who, like the invitee in the reported 
cases, soon finds himself fallen into a pit. He is given no 
map carefully charting and laying out all the by-ways 
and the corners of the legal field, but is left, to a certain 
extent, to find his way by himself. His scramble out 
of diflftcultles, if successful, leaves him feeling that he 
has built up a knowledge of the law for himself. The 
legal content of his mind has a personal nature; he has 
made it himself. This independence and resulting self- 
confidence is the biggest thing In his life as a student. 
Although he cannot merely stick In his thumb to draw 
out a plum of legal knowledge, the greater efi^ort has its 
compensation. Indeed, the independence developed is 
remarkable. Jones, Law i, after a month or so, boldly 
asserts that the nine Justices of 'the greatest tribunal 
in the world' are absolutely and unanimously wrong, 
or that his professor, who perchance is the author of a 

C130] 



standard text or two, and a number of authoritative 
monographs and has had years of experience at the bar 
and in the School, is clearly mistaken in his view of this 
case or that legal principle. 

"The notebook is the principal tool of the student. 
In this he writes the abstracts of the cases assigned for 
the day's work, what the lecturer says, and the questions 
and answers of those attending. In the review which 
starts about the first of January in contemplation of the 
June examination, many additions and corrections are 
made. The entire notebook, or portions of it, are often 
abstracted or summarized. Notes concerning cases or 
legal articles, to which reference was made in the class, 
are inserted ; occasionally even a few words are embodied 
from some disdained textbook with which the notebook 
owner has aided his review. To be sure, the notebook 
is often allowed to take the place of the student's mind, 
and from the careful underlining and the different colored 
inks used in the review, it might seem in some cases that 
the maker was best suited for the course in Landscape 
Architecture. But more often the notebook is a serv- 
ant and not a master. The reviewer uses his own ideas 
afresh and jots down questions concerning matters that 
he does not understand or with which he disagrees. 
These questions he tries to straighten out by talking or 
reviewing with his fellows, by reading additional cases or 
texts, and by conferring with his professors. 

"No doubt the student's ideas of the law are often 
as verdant as the green eyeshades he affects in the law 
library. A particular course he receives at first merely 
in blocks. But later in the year these blocks seem to 
fit together into a whole. So the separate courses like- 
wise, at the end of three years, are seen more or less as 
parts of a greater legal structure. What is more impor- 
tant, because he has learned each little part of the whole, 
not merely as something which is the law but as some- 

C131] 



thing which ought, or ought not to be the law as he him- 
self feels it, the body of the law is to him something living. 
His future professional work is to be no mere skillful 
piecing together of static precedents, — in fact precedents, 
if anything, are too lightly regarded. Legal problems 
are to be viewed rather in the light of reason and justice. 
"This attitude toward the law, present among the 
students no doubt for many years, is especially impor- 
tant as the basis of a development of more recent times 
which has culminated in the appointment of Dean Pound ; 
viz. emphasizing the need of the law to fit itself to modern 
ideas of social justice, and to the present demands of 
complicated industrialism. This new tendency at Har- 
vard is in some respects the opposite from the *back 
to the farm' movement in other spheres. The problem 
is: Can the student be made to believe in a judicial 
system less pastoral and individualistic than in the past.? 
The task is difficult. There is naturally a certain narrow- 
ness about legal study, a tendency to weigh questions of 
right and wrong and logic, bereft of their bearing upon 
present-day human affairs. With the exception of a 
few mechanical radicals among the students who ques- 
tion and deny everything from the start, at the beginning 
of the course most questions that come up are dealt 
with upon an assumption of the underlying principles as 
axiomatic. Before the first year is over, however, the study 
of some parts of Criminal Law and the trade disputes 
portion of the course on Torts has begun to awaken the 
student in many ways. Later work, especially in such 
courses as those dealing with Public Utilities, Adminis- 
trative Law, and Constitutional Law, and to a lesser 
extent in the others, continues this broadening influence 
until often a discussion among the students, inside or 
outside of class, savors much of economics and sociology. 
Different men react upon this differently. Radicals 
and reactionaries develop. But whatever view prevails 

[132] 



as to the shade of the blots upon the escutcheon of the 
Common Law or the luster of the proposed jewels for 
the crown of the social republic, the net result among the 
students is a growing realization of a needed adaptation 
of the law to present-day conditions. 

"Work at the Harvard Law School is by no means 
limited to what the curriculum prescribes. It is supple- 
mented by a number of outside activities, all related, 
however, to legal training. The one of these which is 
the most important because it affects the largest number 
is the Law Club System. There are at present some 
thirty clubs in the School, composed of approximately 
twenty-four men each, — a 'Court' of eight from each 
class. Upon these clubs being mentioned, a member 
usually hastens to explain that the name 'Club' is a 
misnomer, but this is not entirely true. Although the 
members are usually chosen somewhat at random and 
without regard to social attainments, and their primary 
purpose is work; nevertheless at the weekly meetings 
and annual dinners quite a bond of fellowship grows up 
from the pleasure of interesting and congenial work, — 
much more than in the ordinary debating or literary 
society. The first year men in these law clubs argue 
against each other, within the club, cases based upon 
statements of fact prepared by one of the third year men 
or occasionally by Boston lawyers or members of the 
Faculty. The remainder of the club sit as Associate 
Justices, with the originator of the facts acting as Chief 
Justice, question the contestants, and render the final 
opinions. By this means the first year men soon gain 
a knowledge of the use of a law library and have prac- 
tice in the preparation of briefs and the presentation of 
arguments. Inasmuch as the Board of Advisers, com- 
posed of a half dozen or more third year men appointed 
by the Faculty, have superv^ision of the questions argued, 
and pass upon the briefs, a fairly high standard is main- 

C 133] 



tained, although some of the supposititious cases are 
more fantastical than usually occur on land or sea. The 
second and third year men enter upon the Ames Compe- 
tition, in which similar arguments upon more advanced 
questions take place between the different clubs. The 
final round of this competition between the two clubs 
having the highest record often produces as much excite- 
ment as a yellow-journal-advertised murder trial, several 
hundred students attending. 

"Then there is the Harvard Law Review. From the 
standpoint of the subscriber or reader, no doubt its value 
consists in its leading articles contributed by those far 
more learned and advanced in the law than the members 
of its Editorial Board, and also in the fact that its notes 
call attention to important recent decisions. This is 
only partially its value to the student. Of equal interest 
to him is the competition in scholarship upon which elec- 
tion to its Board almost solely depends; and to those 
upon whom the honor — or rather task of editing it — • 
falls it affords an experience greater perhaps than all the 
rest of the course at Harvard. The Harvard Law Review 
Board consists of twenty-five or thirty men who act free 
of faculty control, although advice and the greatest 
assistance is obtained from frequent conferences with the 
professors. The Board from month to month reads 
every new reported decision of all the Common Law 
courts of the world. Selected cases are discussed in 
meetings, and eventually those that seem the most im- 
portant or interesting are commented upon in the Review. 
Considerable research is required of each editor to whom 
a case is assigned, and of the President and his assistants, 
who correct and revise the editorial when written. The 
seriousness of the writers and their independence of the 
thought is typical of the same spirit through the School. 
Decisions are attacked as though the unhappy courts 
which rendered them would immediately reverse them- 

C134] 



selves upon reading the editorials. The realism of it all, 
the freedom from precedent, the attempt to mould the 
law as it ought to be, — these are things that the editor 
cannot but look back upon without regret in future years 
of practice, when his mind must follow a tortuous course 
among impeding state reports, guided always by expe- 
diency in his client's interest. 

"The Legal Aid Bureau, a more recent acquisition of 
the Law School, affords experience of a practical kind 
to many men who do not have the advantage of the Law 
Review. In the Bureau's office at Central Square, 
Cambridge, the men take turns at office hours and give 
legal advice and aid to those who cannot afford to pay 
an attorney. In this way the School is of a certain use 
to its immediate community, and the men, in handling 
cases in and out of court, rub up against actual conditions. 

"To complete the picture of the Law School, a word 
must be said about its social life, which is free for the 
most part from the other departments of the University. 
The Law Club banquets, and the Class Smokers and 
Dinners, bring out this side of the student to the greatest 
extent. Here the professors meet with the men on a 
basis of equality, or perhaps inferiority, in that they find 
themselves the butt of the jokes and songs. Some of 
these Smokers have developed into quite elaborate affairs, 
in which the talents of the students have brought out an 
indigenous type of humor peculiar to Harvard Law School. 

"It is not the purpose of the writer to enter into a 
criticism of the School from the student's viewpoint. 
But of course, it is not in all respects perfect. One finds 
the classes too large, a certain amount of clannishness, 
especially in the first year, among the graduates of the 
different colleges, and a dissatisfaction with the way this 
course or that course is taught. All this is but natural. 
It is better to have the classes too large than to have added 
to the Faculty any but the best instructors ; for although 

[135] 



much is left to the students' own work, the success of 
the case system and its dialectic methods is entirely due 
to the excellence of the professors the School has and has 
always had in its service. 

"Some students feel that the course is not practical. 
In a sense the graduate is better prepared to present a 
case before a learned Appellate Court than to enter a 
hand-to-hand tilt with some ignorant but stubborn Jus- 
tice of the Peace ; more able to write a complicated brief 
than to draw a chattel mortgage. But moot and prac- 
tice courts and the like are at best makeshifts. The final 
making of the lawyer depends, as in the days before law 
schools, upon the law office itself, in which most of the 
graduates spend at least a year's apprenticeship. What 
is more important, the graduate finds himself the pos- 
sessor of a legal mind, developed to a considerable extent, 
the content of which is not a store of cut-and-dried rules, 
learned by rote, but a living body of principles, each of 
which has passed the test of his own reason and sense 
of justice. With the increasing emphasis placed upon 
modern social and economic conditions and their relation 
to law, the graduates must be far between who are on 
the road to becoming lid-sitters or technical pettifoggers. 

" It is with some confidence and considerable joy that 
the graduates set out upon their future work, not merely 
as lawyers, but also as citizens." 

This statement of student life of the present day, 
written by a recent graduate of the School, offers a vivid 
picture which may be compared with the less elaborate 
sketch of a student's life fifty years earlier. "He took 
part in the discussion of Parliament, where political dis- 
cussions were debated Friday nights; he belonged to 
various law clubs; he helped Professor Washburn pre- 
pare a new edition of his Law of Real Property, and 
worked for Professor Parsons upon more than one of his 

[136] 



law books. With all this hard work he found plenty of 
time for social life and was one of the best-liked men in 
the School." 

The "Parliament" (at times called the "Assembly"), 
the debating club to which all students belonged, has 
long since passed away; the law clubs are still, as they 
were fifty years ago, flourishing institutions wherein the 
members discuss questions of law. The power of inves- 
tigation which the best students fifty years ago gained 
from work on the legal treatises of the professors is now 
acquired on the editorial board of the Law Review. The 
social life of Cambridge is still open to students with 
social tastes and opportunities. But the simple activities 
which were suited to the placid law of the time are inade- 
quate training for the lawyer of to-day, who must apply 
the complexities of a rapidly developing system of law 
to the intricate requirements of a highly organized indus- 
trial civilization. In these fifty years the School has 
grown, not merely in size but in function, into a highly 
individualized institution, with its own social as well as 
mental activities, its characteristic spirit, its common 
law and common life. On the intellectual side the stu- 
dents have their law clubs, their own legal periodical as 
the organ of their legal beliefs, their Ames Competition, 
their quiet companionship of the reading room, and the 
noisier strife of constant discussion in corridors and out 
of doors. After the discussions in the law clubs are 
finished for the year the "review sections" begin to 
occupy a large part of the students' time. A review sec- 
tion is a voluntary association of three or four men for 
the purpose of going over the courses of instruction. The 
cases are reread and stated, the class discussing renewed, 
errors of memory or of judgment corrected, and finally 
such a clear knowledge of the subject-matter of the 
course is obtained as the thought and study of one man 
alone could not give. On the social side the students 

[137] 



have their dining clubs and their two or three social clubs. 
The Law School Society of Philips Brooks House directs 
their altruistic activities, giving opportunities, much 
used, to teach classes of foreigners or of workmen; it 
also maintains an information bureau and conducts a 
reception for new students, offers classes in Bible study 
and holds a course of Sunday evening talks for law 
students by distinguished lawyers on matters of profes- 
sional interest. The Legal Aid bureau places the knowl- 
edge and the time of the older students at the service of 
the poor of Cambridge, and incidentally gives to the 
students themselves a desirable experience in handling 
clients and their woes. Each of these activities is worth 
a further word. 

Class spirit has in recent years grown up, and since 1887 
each graduating class has elected a secretary and other 
officers, and the periodical reports of the secretaries have 
been valuable in keeping the graduates acquainted with 
one another in later years. In 1889-90 the School 
issued its first Quinquennial Catalogue, with a complete 
list of all former students, and this has been followed by 
five successive issues, the last in 1914. 

The cosmopolitan character of the students has already 
been pointed out. During the entire history of the 
Character of School they have been drawn from all parts 
students of the country. For a considerable part of 

its history the men from outside New England have far 
outnumbered those from the New England states. 

During the greater part of its history the School has 
had a large proportion of college graduates among its 
members. In the first five years of the School 81 % were 
college graduates; in the first five years of Story's ad- 
ministration they formed 75% of the whole number; 
but from 1851 to 1855 inclusive only 62%, and immedi- 
ately after the war less than half of the class. From 

C138] 



1870 the percentage steadily increased. In 1871 it was 
51%; in 1881, 61%; in 1891, 69%; in 1896, at the be- 
ginning of Ames' deanship, 80%. As a result of the 
graduate rule it became 92 % in 1900, and since 1905 not 
more than one or two students have lacked a college 
degree. 

The number of colleges represented among the gradu- 
ates has also steadily increased. In 1874 only 18 col- 
leges were represented in the School. In 1889 there 
were 41 ; in 1892 there were 54; and the number increased 
rapidly to 74 in 1894 and 82 in 1895. In 1901 there were 
92; in 1903, hi; in 1906, 126; in 1910, 135; and in 
191 1, 145. The number in 1916 is 153. 

In the year 1886, eight students of the third year class 
formed an organization called the Langdell Society for 
the serious discussion of legal topics and for xhe Harvard 
other serious work on law. Two of the mem- -^^w Review 
bers prepared essays on points of law, which were after- 
wards published in legal periodicals. The group also 
conducted a series of trials of fact which proved interest- 
ing as well as amusing, but the great service of the short- 
lived Society to the School was in the establishment of 
a Law Review. Mr. J. J. McKelvey, one of the members, 
ran across a copy of the Columbia Jurist, a periodical 
published for a few years by the students of the Columbia 
Law School. It occurred to him that the Harvard Law 
School could support its own legal periodical, and he 
suggested this to the members of the Society. Six of 
the eight members undertook to join with him in the plan 
and two others were added from the class. Mr. J. W. 
Mack was chosen business manager and the eight editors 
of the third year class proceeded to canvass the Boston 
alumni of the Law School for support of the magazine. 
Reasonable success having been attained in this line, and 
editors added from the other two classes, the first number 

C 139] 



was published in April, 1887. The Faculty were invited 
to take an active part in the management, but thought 
"that the interests of the paper would be more advanced 
by their remaining in the background." 

Although the idea of the magazine was taken from the 
Columbia Jurist, its form and its character were more 
like those of the American Law Review in its earlier days. 
Leading articles were followed by notes and other edi- 
torial matter. Mr. J. H. Wigmore suggested the digest 
of recent cases and being given charge of that department, 
originated a kind of editorial work which has since been 
followed in all later periodicals. Departments of lecture- 
notes, imitated from the Columbia Jurist, and of re- 
ports from the moot club courts were soon discontinued, 
as the magazine was found to make a broader appeal 
than merely to the graduates of the Law School. 

The Review met with a moderate degree of success for 
a few years, until the Law School Association came to its 
help by entering a year's subscription for each of its 
members. This resulted in a large, permanent increase 
in the subscription list and consequent prosperity for 
the Review. When a considerable surplus had been 
earned, it was decided to put it into the hands of perma- 
nent Trustees, and Professor Ames, Mr. L. D. Brandeis, 
and Mr. G. R. Nutter were chosen Trustees. 

In the fifteenth year of the Review, the Board awoke 
to a realization that they were no longer editing a " col- 
lege paper," but a periodical for legal scholars and prac- 
ticing lawyers. A complete reorganization of policy and 
methods took place. The somewhat unsystematic col- 
lection of material was abandoned. First year men were 
no longer elected. The editors were increased from 
fifteen to thirty, eighteen in the third year class and twelve 
in the second year. The criterion of choice has always 
been ability, largely as evidenced by marks. 

The system evolved in 1902 has continued with few 

[140] 



changes until the present time. The Board is officered 
by the President, Treasurer, and Editors of the three 
departments, — Notes, Recent Cases, and Book Reviews. 
The selection of leading articles is entirely in the hands 
of the President, who calls upon members of the Board 
for advice from time to time. These articles are con- 
tributed by prominent legal scholars in all parts of the 
world. 

The Departments of Notes and Recent Cases are 
written in the following manner. Advance reports from 
every common-law court of any importance, and the 
chief legal periodicals, are distributed among the editors 
about the twentieth of the month. Each editor reads 
through the reports assigned to him, marking any cases 
which seem interesting because of the importance of the 
decision, the doubtful reasoning of the court, or some 
striking peculiarity of the facts. The standard of selec- 
tion is the interest of the point involved to the profes- 
sion in general. 

About three or four days later the case meeting is 
held. This is generally divided into two sessions, one 
in the afternoon lasting from two till six, and the other 
in the evening from seven till the work is finished. Part 
of the board attend in the afternoon, and the remainder 
in the evening. At the meeting each editor gives a short 
abstract of the cases he has "saved." The value of the 
case for publication is then discussed by the board, led 
by the President and Case and Note Editors, and if it is 
thought worthy in the final judgment of the President it 
is *'kept" for further consideration. As an additional 
means of collecting interesting cases, the Review has, in 
many jurisdictions, a "case reader," a lawyer of expe- 
rience, practicing in that jurisdiction, who notes the im- 
portant decisions of its courts and communicates them 
to the Review. The cases thus submitted are examined 
by the President and either "kept" or discarded. 

C141] 



The cases which are "kept" at the case meeting and 
otherwise are assigned equally to the editors, to make 
a preliminary report upon them. The "prelim" consists 
of a careful, concise abstract of the case, with a statement 
of the condition of the authorities upon the point as 
disclosed by a search through the digests, the viewpoint 
of a couple of leading texts, a listing of any recent treat- 
ment of the subject in the Review, and finally a short 
statement of the writer's opinion as to the value of the 
case for publication. The "prelim" writer reports the 
cases assigned to him to the Case or Note Editor, who 
discusses them with him and gets his views. The "pre- 
lim" serves two purposes. It aids the President and the 
Case and Note Editors in their decision as to the worth 
of the case, and it is often of help to the editor who finally 
writes up the case, should it be accepted. 

The final selection is made in the light of these prelimi- 
nary reports by the President, advised by the Case and 
Note Editors, and each decision thus sifted out is assigned 
to some member of the Board to turn into a Recent Case 
or a Note. The former consists of a short statement of 
the facts and the decision, followed by a concise comment 
upon the principle involved and the condition of the 
authorities, which have been thoroughly searched. Its 
object is to produce something of value to the practicing 
lawyer when he prepares a brief. The purpose of a Note 
is more scholarly. It is longer, and without omitting 
full examination of the authorities it goes more deeply 
into theory. Besides interesting points arising in the 
courts, any subject of current legal importance like a 
new Federal statute may be treated in a Note. Both 
Recent Cases and Notes are written after discussion with 
other editors. 

The Department Editor then revises the material in 
consultation with the writer. If it is also satisfactory 
to the President it goes to press. The writer himself 

[142] 



reads the proof, and personally verifies each citation from 
the original report. 

The increasing circulation of the Review under the 
new policy created a serious problem. The earliest num- 
bers had been printed from type and the edition soon 
became exhausted. After a few years it was therefore 
necessary to reprint it. From that time all the current 
numbers were electrotyped and earlier numbers were 
from time to time reset and electrotyped. This process 
was finally completed in 1912 and, in honor of the 25th 
anniversary of the Review, a complete edition at a re- 
duced price was issued. The publication of this edition 
exhausted the entire reserve fund in the hands of the 
Trustees, but the successful sale of the edition has much 
more than replaced the amount. 

The contributors to the Review are unpaid. The 
routine work is done by hired clerks, but the editors 
receive no monetary remuneration, nor is any scholastic 
credit given by the School. The training received is 
regarded as well worth the cost. 

The problem of how much time and efi^ort to devote 
to training students in the machinery and methods of 
court practice has been a diflRcult one. The xhe 
courses in New York and Massachusetts ^^^ ^^^^^ 
practice have been already described. Experience has 
proved that it is not worth while to spend the time to 
reproduce trials of fact before a jury or to require an 
extended study of procedure, the forms of which vary 
so much in the different states; and it has been a source 
of satisfaction that the fascination of court practice has 
not led students to seek more half-effective training in 
the practice side of the law at the expense of the lasting 
benefits of a thorough grounding in legal thinking. Very 
great benefits have been derived, however, from expe- 
rience in the preparation of briefs and the presentation of 

C143] 



oral arguments before a judge or a court of appeal, and it 
is here that efforts have been made and results achieved. 

In the early days of the School a moot court was a 
part of the regular curriculum and apparently was in- 
tended to be as nearly like an actual court as possible. 
This was under the direct supervision of the Faculty, and 
while the School was small there was no great difficulty 
in carrying it on, but as the numbers grew, it became a 
very great burden on the Faculty and it was almost 
impossible to give any considerable portion of the stu- 
dents an opportunity to argue the cases. The students 
began to lose interest, and furthermore a number of law 
clubs had spring up which served substantially the same 
purpose. 

Almost from the beginning of the School the students 
formed clubs for the informal discussion and formal argu- 
ment of questions of law. The clubs have differed some- 
what in the scope and intensity of their activities, but the 
general character has not varied much. At present each 
is composed of three courts, eight men from each class 
forming a court. The men of the upper classes act as 
chief justices for the arguments of the lower class courts. 
Each first year court has twelve arguments during the 
academic year on questions of law in the subjects studied 
during the first year. The judge who is to preside deter- 
mines upon an agreed statement of facts upon which the 
legal question arises. One man argues on each side. 
Those members of the first year court who are not argu- 
ing act as associate justices. There is careful prepa- 
ration by counsel, briefs are filed, and after the oral 
arguments each justice gives a separate oral opinion. The 
number of similar arguments in the second and third 
year courts varies in the different clubs. These clubs 
were at the beginning and have continued to be the result 
of the spontaneous enthusiasm of the students, and it 
has become a tradition in the School that the training 

[144] 



afforded by the law clubs Is a most important addition 
to the curriculum, and worthy of much time and effort. 

The first law club, the Marshall, was started about 
1825 and was active until 1870. During this period 
several others came into existence and were more or less 
thriving, but the time of great growth and activity did 
not begin until after 1870, about the time of the rise of 
the "case system." The Pow Wow club, which was long 
the most prominent in the School, was started about 1870. 
Others rapidly followed; but while the moot court con- 
tinued to be at least an elective part of the curriculum 
no efforts were made by the Faculty to increase the num- 
ber of law clubs or in any way to supervise them. The 
three or four most prominent clubs selected the ablest 
men in the class, and sometimes even drew men away 
from the newer and less important ones to fill vacancies. 
Membership in one of the best clubs was a substantial 
honor. The first period of great activity lasted from 
1870 to about 1897; new clubs were continually spring- 
ing up during this period, and the interest taken by the 
students was keen. 

The moot court was finally abandoned in 1897, and 
the problem was then faced of giving every student a 
chance to argue cases if he so desired. In order to solve 
this problem the Faculty took an active interest in help- 
ing the students to form enough new law clubs to take 
in all men who were not chosen by the older organizations. 
Where there had been but ten clubs before 1890 there 
soon were more than twenty. 

It became less and less true that the ablest men were 
all in a few of the oldest clubs. While the interest thus 
became more widespread, it was perhaps not so intense 
as it had been. Furthermore, the growth of the Harvard 
Law Review, membership in whose editorial board was 
becoming a goal of student ambition, naturally took a 
great deal of the time and interest of some of the best 

[ 145 ] 



men. These factors did not at first have any substantial 
effect in reducing the activity of the law clubs, but as 
early as 1900 a decline in the interest in arguing cases in 
the second and third year courts was apparent. This 
was by no means universally true, some clubs retaining 
their best vitality; but by 1910 it was generally felt that 
although the first year men were still kept busy, the law 
clubs were by no means so valuable as they had been. 
This was the low ebb. With the institution of the Board 
of Student Advisers and the Ames Competition, the tide 
turned. 

On March 8, 19 10, the Faculty passed the following 
vote, establishing the Board of Student Advisers. 

" Voted: that throughout the academic year 

The Advisers . . . . 

1910-11 additional provision shall be made 
for encouraging among first year students early and 
intelligent use of the law library and also for rendering 
the work of the law clubs efficient; and that to this end 
there shall be appointed six advisers, being students of 
at least two years' standing in 1910-11, and that the 
duty of each adviser shall be (i) to explain to all inquirers 
the arrangement of books in the reading rooms, the scope 
of digests and of other works of reference, the mode of 
finding authorities upon any question stated to him, and 
the arrangement of briefs for club courts; (2) to keep 
until the end of May two office hours each week in the 
reading room of Langdell Hall at a table to be assigned; 
(3) to serve on the Committee on Law Clubs and, if 
requested, to sit as justice twelve times for clubs of first 
year students; and (4) to spend in addition twelve hours 
yearly in other work to be determined by the Law Fac- 
ulty." 

The number of the advisers is now eight. They have 
entire charge of the work of the law clubs and of the 
Ames Competition. Each adviser has a certain number 

[146] 



of clubs under his direct supervision and encouragement. 
The system has been found to furnish an excellent means 
of communication between the student body and the 
Faculty. By their formal reports and by informal 
conferences they keep the Faculty informed of the needs 
and desires of the students, and interpret to the students 
the principles of faculty action. 

The first chairman of the Board was Claude R. Branch 
(1910-11). His successors were James B. Grant and 
Lawrence G. Bennett (1911-12), Zechariah Chafee, Jr. 
(1912-13), Harvey H. Bundy (1913-14), Chauncey 
Belknap (1914-15), Spencer B. Montgomery (1915-16), 
and Joseph Nye Welch (1916-17). 

In 1910, after the death of Dean James Barr Ames, 
Mrs. Ames, in fulfilment of a wish expressed by him, 
gave the sum of ^10,000 for the benefit of The Ames 
the Law School. There was no restriction Competition 
contained in the gift, — the income was to be applied 
annually to any purpose which the Faculty might deem 
beneficial to the Law School. 

Dean Ames always took keen interest in the work of 
the law clubs formed by students for the argument of 
moot cases, and had been lavish of his time and strength 
in encouraging their activities. The members of the 
Faculty were unanimous in believing that the activities 
of these clubs should be encouraged, and that it was ap- 
propriate to use income accruing from Mrs. Ames' gift 
in giving prizes for excellent work done in the law clubs. 

On May 2, 191 1, the Faculty voted that two prizes of 
$200 and ^100 respectively be given in each year, until 
otherwise ordered, to the winners in a competition be- 
tween law clubs formed or to be formed by students of 
the School, such competition to be subject to certain 
regulations. 

Experience had shown that students were usually 

C147] 



keen about work in law clubs in their first year, but that 
their interest was less in the second year. This was 
due, in part at least, to the fact that throughout the 
first year it remains quite uncertain what men will rise 
to the surface and prove to be the cream of the class. 
The man is rare who, upon entering the Law School, 
would consider it beyond the range of reasonable prob- 
abilities that he should so rise to the surface. Since 
work in the law clubs is recognized as an important aid to 
a student's development, most first year men are eager 
to share in the benefits. After the members of the 
Faculty have, through the marks upon the examinations 
at the end of the first year, given to the students an 
external estimate of their legal capacity, a good many, 
even among those who passed the examinations, are dis- 
appointed at finding themselves rated so low. It is 
hard for them to take the same interest in their work, 
particularly in the work within the law clubs, participa- 
tion in which depends entirely upon their own volition. 
As a whole, the men who are disappointed at the results 
of the first year rally well, go at their work again in grim 
determination, and the records of the School show many 
instances where such men have effected substantial im- 
provement in their standing in the second and third years. 

These considerations moved the Faculty to frame the 
regulations governing the Ames Competition so that the 
prizes should be awarded for work done by students in 
the second year. The first year work is indirectly af- 
fected, however, because under the regulations no second 
year club can compete unless it has had a creditable 
record as a first year club. 

The competition itself was an elimination tournament. 
The advisers, subject to the approval of the Faculty, 
framed moot cases for argument. At each argument two 
representatives of one club were opposed by two represen- 
tatives of another club. No representative of a club 

C148] 



could argue more than once, until at least six men from 
the club had argued. The judges were to be selected 
by the competing clubs, or to be assigned by the advisers. 
In the final round there was to be not less than three 
judges. The judges in making their awards were to 
consider the ability shown in the preparation of briefs, 
in presenting arguments, in accurately and succinctly 
stating the authorities cited, and in meeting questions 
put by the court during the argument. The advisers 
were to regulate the competition in all matters not 
specifically provided for in the regulations. 

In the year 1911-12 twenty-one second year clubs 
entered. The moot cases were framed on points relat- 
ing to the work of second year men. The first prize of 
$200 was won by the Choate Law Club, represented in 
the final round by M. M. McDermott and M. C. Lightner, 
and the second of ^100 by the James Bryce Law Club, 
represented by Marvin C. Taylor and T. Justin Moore. 
The judges in the preliminary rounds were two third 
year students and either an attorney at the Boston bar 
or a professor in the Law School. The judges in the final 
round were Hon. Henry Newton Sheldon, of the Supreme 
Judicial Court of Massachusetts, Dean Thayer, and 
Professor Edward H. Warren. 

In the year 1912-13, the competition continued under 
substantially the same regulations. Twenty-four second 
year clubs entered. The first prize was won by the Beale 
Law Club (W. H. Greenleaf and Jeff Myers), and the 
second by the Bruce Wyman Law Club (H. J. Brandt 
and P. D. Wesson). The judges were Hon. Frederic 
Dodge, United States Circuit Judge, Professor Eugene 
Wambaugh, and Arthur D. Hill, Esq., of the Boston bar. 

In 1913-14 the faculty decided that the prizes should 
be given, not in money, but in books, in which special 
name plates should be inserted. Twenty-four second 
year clubs entered. The first prize was won by the 

C 149] 



Kent Law Club (Montgomery B. Angell and Chauncey 
Belknap), and the second by the James Bryce Law Club 
(Julius H. Amberg and Clarence B. Randall). The 
judges were Hon. William Caleb Loring, of the Supreme 
Judicial Court of Massachusetts, Dean Thayer, and 
William G. Thompson, Esq., of the Boston bar. 

In 1914-15 the regulations were substantially changed. 
As the competition was an elimination tournament, one 
defeat put a club out. This was thought to be unde- 
sirable. The added interest given to the work of the 
second year clubs by the Ames Competition was short- 
lived for many clubs. Moreover, as each club was com- 
posed of eight men, it made too much depend on the work 
of the first two men who represented the club. The com- 
petition was therefore changed so as to consist of a quali- 
fying round robin tournament of six rounds, each 
competing club to take part in six arguments; and an 
elimination tournament to be argued at the beginning of 
the third year by the clubs that had qualified during 
the second year. 

In 1914-15 twenty clubs entered the qualifying tour- 
nament. Four, the Kent, Marshall, Moody, and West- 
engard clubs, qualified for the elimination contest the next 
year, in which the first prize was won by the Kent (F. L. 
Daily and H. A. Scraggs), and the second by the Marshall 
(E. O. Tabor and M. V. Rinehart). The judges in the 
final round were Justice Loring, Hon. James Madison 
Morton, Jr., United States District Judge, and Hon. 
Charles Thornton Davis, of the Land Court of Massa- 
chusetts. 

In 191 5-16 seventeen clubs entered the qualifying 
tournament, and seven of these qualified, the George 
Gray, Lowell, Kent, Thayer, Warren, Williston, and 
Witenagenot. The elimination tournament next year 
was won by the Lowell (Alvin C. Reis and Conrad E. 
Snow), and the second prize by the Witenagenot (Leon- 

[ISO] 



ard M. Rieser and Urban E. Wild). The judges were 
Justice Loring, Justice Dodge, and Justice William H. 
Sweetland, of the Supreme Court of Rhode Island. 

In the main reading room in Langdell Hall is a tablet 
upon which are inscribed the names of the victorious 
clubs and their members. The briefs in all Competition 
cases are collected, bound, and preserved in the Library. 
Copies have several times been made for members of 
the bar engaged in litigation upon similar points of law. 

In 191 3 the Legal Aid Bureau was formed, as part of 
the activity of the Law School Society of Phillips Brooks 
House; it is now an entirely independent Harvard Legal 
organization. It offers some of the older ^^^ Bureau 
students an opportunity of engaging in welfare work 
while at the same time they acquire professional expe- 
rience often more enlightening than can be gained in the 
specialized practice of the modern city office. 

The Bureau has a consultation office in the building 
of the Prospect Union, in Cambridgeport, where office 
hours are kept for four hours during each day. Clients 
are met, claims sifted and adjusted, and if necessary 
actions at law are instituted and carried through. The 
Bureau is incorporated, in order that it may act as at- 
torney in fact for clients. In 1915-16 the bureau had 
147 clients, instituted six suits (of which none were lost), 
and recovered for clients ^1647.50. 

The Bureau is a self-perpetuating body of twenty- 
seven members, who are chosen from the second and third 
year classes on a basis of scholarship and adaptability 
for the work. A board of directors, consisting of three 
officers and three directors, has general supervision. 
The board does not, except in special cases, control the 
details of any case. The client who comes into the office 
of the Bureau is the client of the member then in charge. 
Upon that member individually rests the responsibility 

[151] 



for the proper disposal of the case. Expenses are paid 
by contributions from students of the School. This 
method has proved unsatisfactory and the work of the 
organization has been hampered by lack of funds. It 
has been necessary for members of the Bureau to make 
advances on several occasions. 

No extra-curriculum activity in a law school can justify 
itself except by intimate connection with the work of 
the School, and it cannot survive if it demands too much 
of the student's time. Members of the Bureau are on 
duty at the consultation ofhce for two hours on alternate 
weeks. If the burden upon one man becomes too heavy, 
a portion of his cases are assigned to another. Thus a 
member of the Bureau is able, by the sacrifice of compara- 
tively little time, to supplement the theory of the law 
with practice and to do his part in the great social service 
which is now performed by the legal aid societies of the 
country. 

The success in practice of the graduates of the School 
has been marked. Various class secretaries, among 
Success of them Edward H. Letchworth of the class of 

the Students , „ , . . , . , 

in Practice 190S, have Collected statistics showing the 
professional incomes of their classmates at different 
periods after graduation. The Secretary of the Law 
School, Mr. Richard Ames, made a more general in- 
vestigation of the professional income of graduates of 
the School for ten years, and the results were published 
in Volume 27 of the Harvard Law Review. He found 
that of about 800 men who answered his questions the 
average earnings during the first year were about six 
hundred and fifty dollars, and that the average earnings 
increased by about five hundred dollars a year through- 
out the period. When one considers that this represents 
the experience of eight hundred men, the success of the 
graduates of the School is surprising. It is certainly a 

[152] 



very exceptional lawyer whose Income after ten years 
of practice exceeds five thousand dollars a year; yet this 
is the experience of the average graduate of the Harvard 
Law School, practicing in city or country. 

A college president once remarked that a law school is 
not an Alma Mater, but a mother-in-law. Nevertheless 
more than one graduate of the Harvard Law 
School has admitted that he was happier after Gradua- 
there than in college. Here is an educational 
institution with none of the emotional accessories sup- 
posedly necessary to create loyalty, unless, indeed, we 
except the School cheer, "Offeree, offeror, quash it, nisi. 
Harvard Law!" It has no campus or stadium or class 
day. Only once in years have its students been gathered 
in one room. It inspires devotion solely by its wonderful 
spirit of work in companionship. It is this which the 
alumnus remembers. Nor is beauty of setting altogether 
absent. Often in later years, after a hard afternoon on a 
brief, he will wish that he might look across Langdell 
Library to a classmate, and go out together for a swing 
around Fresh Pond, or over the hills toward Belmont, 
and return past " Blackacre," as Professor Gray's house 
was known to us, and homeward along Brattle Street, 
agreeing heartily with his traditional opinion that it is 
"the finest street in the world." 



[ 153 ] 



CHAPTER VI 

THE FUTURE 

IF American law to-day is compared with American law 
in 1817 and each is compared with American law in 
the last two-thirds of the nineteenth century, the analogy 
in the one case and the contrast in the other case suggest 
much with respect to the immediate future of the Law 
School. In 18 1 7 economic conditions had given rise to 
widespread dissatisfaction with law and general distrust 
of lawyers. Political conditions had brought about 
hostility to English law. Judges and legislators were 
influenced by this popular feeling and an undeveloped 
bar was not strong enough to resist it. Moreover, the 
administration of justice was in large part executive or 
legislative rather than judicial. Divorce jurisdiction was 
chiefly in the legislature; legislative new trials were not 
definitely superseded until 181 8; legislative jurisdiction 
in insolvency had still some years of life before it, and in 
more than one state appellate jurisdiction was in the 
legislature or in one of its branches. Furthermore, with a 
few conspicuous exceptions the courts were in great part 
manned by untrained magistrates. James Kent became 
Chancellor of New York in 18 14, and he tells us that for 
the nine years he was at the head of the judicial system 
of that state not a single decision, opinion, or dictum of 
his predecessors from 1777 to 18 14 was cited to him or 
even suggested. So completely did American law make 
a new start in the fore part of the nineteenth century. 

C154] 



Yet nineteenth-century America proved to be an age of 
lawyers. By the end of the second third of the century 
the working over of the traditional English material to 
make a common law for the new world had been definitely 
achieved. The administration of justice had passed defi- 
nitely into the hands of lawyers. In nineteenth-cen- 
tury politics the soldier was the sole rival of the lawyer, 
and from De Tocqueville to Bryce observers were agreed 
as to the leadership of the lawyer in American com- 
munities. 

In 1917, on the other hand, dissatisfaction with law and 
distrust of lawyers are no less marked than a century 
ago. Social conditions and industrial conflicts have made 
more than one tenet of our legal system unpopular and 
have roused strong opposition to the fundamental dogma 
of the supremacy of law. Once more judges as well as 
legislators are inclined to yield undiscriminatingly to a 
blind pressure, and an unorganized and heterogeneous 
bar is in no position to resist. Moreover, what is more 
significant, the administration of justice is passing in 
large measure from judicial tribunals to executive boards 
and commissions, 

A century ago the materials for an adequate body of 
law were at hand in the traditional course of decision in 
the English courts. It was the task of the law school 
to make these materials accessible in a form in which 
they could be used, and it was the task of the courts to 
develop them by judicial application to actual causes. 
Academic exposition, enriched in the hands of Story by 
comparative law, played a larger part in the building of 
American law than has commonly been perceived. More 
than anything else, the books of our great nineteenth- 
century text writers saved the common law in the critical 
period of American legal history. They provided guides 
for judge and practitioner, well written, learned, well 
ordered, and, as things went then, well reasoned. With 

[155] 



copious references to the civil law that seemed to make 
it clear that the resources of comparative law had been 
exhausted, they stated none the less the common law as 
worked out in the English courts. Thus at the crucial 
time the common law was so presented as to make a recep- 
tion of that system easy, and the energies of judges were 
turned to the right channel of applying common-law 
principles to concrete cases. Until we had a body of judi- 
cial decisions able to stand by itself such aid was indis- 
pensable. Without it, it is doubtful whether we should 
live under the common law to-day. As Coke summed up 
the development prior to his time and thus furnished the 
basis for a juristic new start, so these text writers, of whom 
Story is easily first, both in the quantity of his writings, 
and, on the whole, in quality, summed up English case law 
of the seventeenth and eighteenth centuries and made it 
available as the basis of a new start in America. Much 
that in form was the work of the courts in reality was 
taken already shaped from the books that represented 
the best work of the law teacher. 

To-day also the materials for an adequate body of law 
are at hand, this time in the judicial decisions in the 
English-speaking world which set forth the experience of 
English peoples in administering justice in the nineteenth 
century on the basis of the traditional English legal 
thought. If the continuity of that tradition is threatened, 
if the rise of boards and commissions threatens a reversion 
to administration of justice without law, the common law 
is to be saved exactly as before by making its materials 
accessible in a form in which they can be used, and so 
presenting them as to make them available as the basis of 
another new start. Such is the first task of to-morrow for 
the American teacher of law. 

In order to do for the law of the twentieth century what 
the law teachers of the past did for the law of the nine- 
teenth century, our professors of law must be aff^orded 

[156] 



opportunity for research. No longer can they print 
their lectures, as given in the class-room, and in so doing 
give us useful textbooks for court and practitioner. The 
conditions of modern teaching wholly preclude this. 
Hence teaching and writing, much as they should go on 
together, are distinct processes. Nor may we overlook 
the importance of the latter. The stress of business in 
the courts of to-day compels the judges to work rapidly 
with a minimum of deliberation, without the elaborate 
argument of every detail which was possible a century 
ago. Thus, at a time when constructive work of the 
highest order is called for, the very circumstances of 
judicial administration preclude it. Yet more difficult 
questions are arising than any with which American 
judges had to deal in our classical constructive period — 
the period from the Revolution to the Civil War. Hence 
it is not likely that American courts will much longer be 
able to do more than give authoritative sanction to what 
has been worked out and formulated by others. Already 
the papers of professors of law in academic legal periodi- 
cals are cited and relied upon with significant frequency. 
Neither legislation nor judicial decision, with no stimulus 
from without, could have done for our law of evidence 
what has been done by James Bradley Thayer and by 
Wigmore. We must bear in mind that to-day the teacher 
of law works in the conditions of permanence and inde- 
pendence that were the strength of the common-law judge. 
He may do historical, critical, and analytical work that 
the judge cannot do. Moreover, he deals with the law 
or with great departments of the law as a whole, while the 
judge may look only at a fragment. It would be a mis- 
fortune if the power of our teachers of law to engage in 
research were to be curtailed at the very time when it has 
come to be most needed. 

Not only must we turn once more to the law teacher to 
make the traditional materials of our legal system avail- 

[157] 



able for a new start in American law, even more must we 
turn to him for juristic development of the law which is 
growing up outside of the courts. The Federal Interstate 
Commerce Commission, established in 1887, and the Eng- 
lish Railway and Canal Commission, established in 1888, 
have been followed in recent years by Public Service 
Commissions of one sort or another in substantially all 
English-speaking jurisdictions. The whole administra- 
tion of the law of public utilities is coming to be committed 
to such bodies. The Federal Trade Commission, recently 
set up, is likely to absorb the larger part of the practical 
administration of the law governing the activities of 
great industrial enterprises in their relations with their 
competitors. Boards of probation and parole are ac- 
quiring the power to determine the duration and the 
nature of penal measures after conviction, and the judicial 
sentence is becoming a mere form. The whole subject of 
master and servant, so far as the law of torts is concerned, 
has been taken from the courts and confided to industrial 
commissions. And it is not unlikely that the adminis- 
tration of justice in other aspects of that relation will 
ultimately be confided to nonjudicial boards or commis- 
sions, as the temporary expedients of boards of concilia- 
tion, arbitration and the like give way to legal modes of 
adjusting industrial disputes. A clear body of law has 
grown up already as the result of the experience of a gen- 
eration in the Interstate Commerce Commission, a body 
of law is forming under our eyes through the adminis- 
tration of Workmen's Compensation Acts by industrial 
commissions, and the exigencies of general peace and good 
order, if nothing else, must lead before long to a new body 
of law governing industrial disputes. In all these matters, 
however much society may turn for a time to the un- 
fettered common sense of the layman, we may be assured 
that in the long run the paramount social interest in the 
general security will require administration of justice 

C158] 



according to law. In the end the trained lawyer will be 
called upon to formulate in legal principles the results of 
administrative experience, and in practice this means that 
the teacher of law must put system behind them and give 
them a rational development. Meanwhile there will be 
much to do along more familiar lines. Reconciliation of 
the new principles behind our Workmen's Compensation 
Acts with the general law of torts is a pressing problem. 
Collective bargaining is likely to compel us to think over 
again the whole subject of juristic personality in Anglo- 
American law. Criminal law and procedure call for the 
best efforts of thoroughly trained common-law lawyers 
acquainted with the social science of to-day. On the legis- 
lative side, the organization of courts, procedural reform, 
and penal legislation and administration make demands 
which are not to be met by legislative reference bureaus, 
manned by laymen trained merely in the political and 
social sciences, but call for the best in training and tal- 
ent that our law schools can bring forth. Moreover, the 
gradual codification of our commercial law which began 
in the last decade of the nineteenth century is calling for a 
deeper and more critical knowledge of comparative law 
than has been worth while in the past. 

All these things force us to consider how the Law School 
is to preserve the old professional training with all of its 
old effectiveness for its own purpose, and yet meet the 
demands upon the teachers for research and publication, 
and the demand upon the School for the training of lawyers 
who shall be of service in solving the social problems of 
the time as well as successful in practice. At first sight 
it might appear that radical changes in legal education 
will be called for, and there are many who so urge. But 
such a view is in reality superficial. The strength of the 
Law School has been in the continuity of development that 
has made each period in its history grow naturally out 
of what went before; that has utilized the past intelli- 

[159] 



gently; that has known how to work over given materials 
to make them available for new purposes. Its very ef- 
fectiveness in handling the law of the nineteenth century 
is a guarantee of ability to turn this law to intelligent 
account as an agency of justice in the twentieth century. 
Hence the right line of development is not to set up a 
pretentious "school of jurisprudence" with elaborate 
courses in every phase of legal science and perhaps a num- 
ber of "research professors." In a sense every professor 
should be a research professor; equally also he should be 
a teacher of the common law. For the life of the law is 
in its concrete application, and research divorced from 
the living law that must be taught in the professional 
curriculum will not be likely to achieve the results which 
alone could justify the large endowments demanded. 

Nor is it in the right line of development to dilute the 
general professional curriculum with elaborate courses in 
jurisprudence, philosophy of law, comparative law, theory 
of legislation, criminology and the like. Such a plan 
runs counter to the whole experience of American law- 
teaching since Langdell. It calls for abstract courses, 
where over forty years of experience have taught us that 
legal instruction to be effective must be concrete. It calls 
for courses detached from application in the everyday 
work of tribunals, whereas Langdell's method requires 
us to study the applications and to derive our principles 
by critical investigation of the law in action. 

We may look, therefore, for a natural and gradual de- 
velopment of the School along lines upon which it has 
already begun, holding fast to its traditional policy of not 
attempting all things, but instead attempting a few things 
of the highest moment and doing them as well as possible. 
Thus the regular dogmatic instruction will change from 
time to time with the progress of the law. Much that we 
have had to teach in the past is already yielding in impor- 
tance to new elements in the legal system. Much of our 

Ci6o] 



nineteenth-century law will presently be as obsolete as the 
learning of real actions and of the feudal law of estates in 
land which held so large a place in the curriculum of the 
Law School a century ago, or the elaborate and in- 
volved procedural law which was so important fifty 
years later, or the pedantic law of bailments which 
has given way to a modern doctrine of the obligations 
of public service. Such changes have gone on from 
time to time during the whole history of the School. 
More significant will be the development of gradu- 
ate instruction and the fertilizing of the everyday pro- 
fessional teaching by ideas developed therein and by 
research, as the teachers give part of their time to the or- 
dinary professional courses and part to graduate instruc- 
tion and to research. Thus adequate provision will be 
made for jurisprudence, philosophy of law, comparative 
law, theory of legislation, administrative law and crimi- 
nology, without yielding to the fallacious notion that no 
one may be expected to know anything unless he has had 
a formal "course" in it. Thus also more solidity will be 
given to the work of research and to graduate instruction. 
The one will grow naturally out of problems raised by 
study and teaching of the everyday law; the other will be 
given definiteness by the connection with concrete appli- 
cations. Again, the teacher and investigator will be under 
the pressure of having to argue out his theories with stu- 
dents thoroughly trained in the dogmatic law, and this 
will make for clearer and better thinking in the purely 
theoretical courses. Above all, however, the teaching of 
the ordinary professional courses will be fertilized. The 
theoretical courses will make themselves felt in each dog- 
matic course. Each set will react upon the other, so 
that if the one will be rendered more exact and solid, the 
other will be made more scientific and liberal. For we 
must not forget that properly trained teachers with the 
right spirit may make courses in contracts or torts or 

Ci6i] 



conflict of laws or constitutional law do the work of courses 
in philosophy of law, comparative law, and jurisprudence, 
may make a course in criminal law and procedure effective 
as an introduction to criminology, and may make a course 
in the law of public service companies an effective intro- 
duction to administrative law. Thus the everyday subjects 
of the professional curriculum may be made to achieve 
more for the general body of students than might be hoped 
for through formal detached courses in those subjects. The 
Law School has been proceeding along this line for some time. 

Let it be repeated : the Law School is not to abandon all 
that has been learned since Langdell and give way to the 
idea that there must be a formal course in everything. 
Rather it will continue to seek to train a body of men who 
have so mastered the art of legal reasoning and have 
secured so solid a foundation in legal science and so firm 
a grasp of the materials of our legal system that they may 
approach new problems in new fields and old problems in 
unfamiliar fields with assurance and achieve results of 
real value. But this does not mean that the significant 
movements in legal science that have related it to the 
other social sicences and are making it over are to be ig- 
nored. It means rather that these movements are to be 
treated, not as revolutionary but as evolutionary. 

Even with a program relatively so modest, it must not 
be expected that the Law School can go on permanently 
without an endowment adequate to the task. The mere 
guarding of what has been achieved in the way of thorough 
professional training calls for a more reasonable ratio of 
teachers to students, apart from any question of writing 
and research. Fifteen years ago the ratio of teacher to 
student was one to thirty-six; to-day it is one to seventy- 
two. In no other department of the University is the 
ratio at all so high, — in the Medical School one teacher 
to five students, in the School of Business Administration 
one to ten, in Arts and Sciences one to eighteen. This 

C162] 



does not include teachers who are not on Facuhies. 
Moreover, the Law School classes are reaching the limit 
of size consistent with effective teaching, and division 
into sections must soon be made in the second year, as has 
long been done in the first year. All this would call for 
more teachers, even if the Law School were content to 
shirk its duty in a new period of legal growth and neglect 
its opportunities in that development of administrative 
law, of criminal law, of comparative law, and of the science 
of legislation which is going on about us. 

These subjects are now taught chiefly to graduate 
students in a fourth year. But this graduate fourth year 
is expensive. It never can be expected to pay for itself, 
and yet distinctly adds to the reputation and usefulness 
of the School. Since its inauguration in 1911-12 there 
have been 26 candidates for the Doctor's degree, of whom 
15 were successful. If the 8 graduate students for this 
year are included, there have been among the candidates 
12 professors from other law schools. 

Important as this task is, there has been no disposition 
on the part of the administration to do otherwise than 
keep the professional training distinctly the main purpose 
of the School. 

As soon as the second-year courses are divided, a further 
difficulty will arise, — Langdell Hall must then be com- 
pleted. In the meantime the physical running expenses 
of the School will continue to rise. In 1 899-1900 the 
total charge for such items as the care of the buildings, 
heating and lighting, and other general expense was only 
$3500. Last year it was ^21,000. This is due partly 
to the fact that there are now two buildings to be cared 
for instead of one; partly to the fact that labor and ma- 
terials cost more; partly to the increase in the number of 
students, and partly to the fact that it has been considered 
equitable that the Law School should bear a proportion of 
general University expense. 

C163] 



The library will come to a standstill unless it gets finan- 
cial support. In the last fifteen years its total expenses 
have risen from $19,000 to $35,000, but the amount 
spent for books has hardly increased. Over half of the 
present expenditure is for salaries, wages, binding, and 
stationery. Unless help is forthcoming, opportunities of 
the library in connection with recent developments of the 
law must be passed by. 

An endowment is the only way to meet the situation. 

Economy has been tried as far as possible, — in some 
places, like the purchase of books, too far. Salaries are 
moderate, ranging from $5000 to $7500 for a full Pro- 
fessor, while the librarian receives only $3500. The 
tuition fees will not yield a larger income. The number 
of students is not likely to increase for some years, and the 
fee itself ought not to be raised. The expense of the three 
years at the Law School is high enough as it is, and about 
a third of the men have to take long journeys from the 
south and west. 

At the present time the School's capital is compara- 
tively negligible. The total endowment of Harvard 
University, consisting of income-yielding funds, is over 
$28,000,000. The Medical School (with 358 students) 
has $3,632,000. The Law School (with 856 students) 
has $620,000, not including $100,000 earned by the 
School itself and set aside as a book fund ; that is to say, 
the endowment of the Medical School is $10,145 per stu- 
dent, the endowment of the Law School $724 per student. 
After a century of service to legal science which has led 
the great English legal historian to link the glory of Har- 
vard with the glory of Bologna and of Bourges, the Law 
School may confidently appeal for that endowment which 
is claimed as of course and is possessed by every other 
form of serious educational endeavor; without which no 
educational enterprise of moment may expect to achieve 
adequate results under the conditions of to-day. 

C164] 



DEC 15L920 



LIBRARY OF CONGRESS ^ 

029 501 480 5 



